Dunk v Public Trustee

[2003] NSWSC 37

CITATION:	Dunk v Public Trustee [2003] NSWSC 37
HEARING DATE(S):	15, 16 May, 20 June, 23 July, 4 October 2002
JUDGMENT DATE:	11 February 2003
JURISDICTION:	Equity
JUDGMENT OF:	Master McLaughlin
DECISION:	See paragraph 63.
CATCHWORDS:	Succession - Family provision - Status of Plaintiff as an eligible person - Whether Plaintiff was de facto spouse of Deceased - Matters to be considered - Deceased spent several (but not all) nights each week at residence of Plaintiff - Financial and material circumstances of Plaintiff - Competing claim of beneficiary named in will.
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999
CASES CITED:	Marshall v Carruthers [2002] NSWCA 47 Roy v Sturgeon (1986) 11 NSWLR 454
PARTIES :	Mary Ellen Dunk (Plaintiff) Public Trustee (Defendant)
FILE NUMBER(S):	SC 2195/01
COUNSEL:	C.A. Vindin (Plaintiff) L.J. Ellison (Defendant)
SOLICITORS:	Muggletons Solicitors (Plaintiff) P J Whitehead, Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 11 February 2003

2195/01 MARY ELLEN DUNK -v- PUBLIC TRUSTEE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 12 April 2001 Mary Ellen Dunk claims an order for provision out of the estate of the late John Raymond Joseph Donnelly (to whom I shall refer as “the Deceased”).

3 The Deceased died on 1 December 1999, aged sixty-eight years (he having been born on 7 October 1931). He left a will dated 26 June 1984, probate whereof was on 9 February 2000 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased left the entirety of his estate to his brother, Barry Patrick Donnelly. (The will contained the further provision, “BUT should be predecease me then for my friend MARY ELLEN DUNK absolutely”.)

5 At the date of death of the Deceased his assets consisted of a house property situate at and known as 108 Roberts Road, Greenacre, to which an estimated value of $200,000 was ascribed, together with moneys in various bank accounts (totalling somewhat over $110,000). The inventory of property discloses a total value of the estate in an amount of almost $313,000.

6 After the death of the Deceased an amount of $83,160 was distributed to the sole beneficiary, Barry Patrick Donnelly. Subsequently all assets of the estate have been realised, and the balance of the estate held by the Defendant at the time of the commencement of the hearing was a little under $210,000. There are, however, outstanding liabilities of the estate (including certain outstanding administration costs and expenses, and a GST adjustment payable on final distribution), totalling about $500.

7 Further, it will be appreciated that in calculating the amount of the estate available for distribution, the costs of the present proceedings must be taken into consideration. The Defendant will, in any event, be entitled to his costs, which (including Counsel’s fees) are estimated to total $26,000 up to and including the commencement of the hearing. In the event that the Plaintiff be successful in the present proceedings, she will also be entitled to an order that her costs be paid out of the estate. Those costs were estimated to total $32,363 up to and including the commencement of the hearing. For reasons which will emerge later in this judgment the hearing did not conclude within the period originally estimated by the legal representatives of the parties, and which, upon that basis, was allocated by the Court. In consequence, therefore, the costs of each party will be somewhat greater than the original estimations. It is probable that the totality of the costs of both parties will be in the vicinity of $70,000. Upon my estimation, therefore, the amount remaining in the estate available for distribution will be in the order of about $140,000.

8 The Plaintiff asserts that she was the de facto wife of the Deceased at the time of his death. That status is disputed by the Defendant.

9 It will be appreciated that unless the Plaintiff can establish that she is an eligible person within one or more of the categories of the definition of that phrase contained in section 6(1) of the Family Provision Act she does not have the standing to bring the present proceedings.

10 The Plaintiff was born in England on 10 February 1923 and is presently eighty years of age. She met the Deceased in 1963 in Marseilles in France, when they were each travelling. The Plaintiff and the Deceased spent several months thereafter in France, other European countries and North Africa. At the suggestion of the Deceased, the Plaintiff emigrated to Australia, arriving in 1965. However, the Deceased, who was a carpenter by occupation, continued upon a protracted working holiday both in Europe and in North America, and did not return to Australia until 1967.

11 The Deceased, both before and after his overseas travels, was residing with his mother in the house property at 110 Roberts Road, Greenacre (to which I shall refer as “the Greenacre property”). The Plaintiff, who had commenced employment shortly after her arrival in Australia, purchased in 1972 a house property at 56 Mona Street, Auburn (to which I shall refer as “the Auburn property”). That purchase was funded from the Plaintiff’s savings and a housing loan, secured by mortgage. The Plaintiff in 1973 suffered a knee injury in the course of her employment. In consequence, she ceased work, and subsequently received compensation for that injury. With her compensation moneys the Plaintiff in April 1976 discharged the mortgage on the Auburn property, and since that time has owned that property unencumbered.

12 The Deceased’s mother died on 30 July 1982. The Deceased appears to have thereupon become the sole owner of the Greenacre property. The evidence does not disclose whether he had held an interest in that property before the death of his mother. However, after his mother’s death, the Deceased was the only person who lived in the principal residence upon the Greenacre property.

13 It was the evidence of the Plaintiff that from the time of her acquisition of the Auburn property it was the practice of the Deceased to spend nights there with her. Further, that from the time of the death of the Deceased’s mother, the Deceased frequently spent nights with the Plaintiff at the Auburn property. It was not the practice of the Plaintiff to spend nights at the Greenacre property of the Deceased. According to the Plaintiff there was a continuing sexual relationship between herself and the Deceased. From the Deceased’s return to Australia in 1967 neither of them had any other sexual partners. According to the Plaintiff the Deceased about four years before his death purchased an engagement ring for her, but she subsequently lost it. He also purchased a watch for her.

14 According to the Plaintiff, the Deceased, who was a carpenter by occupation, attended to any work which she desired to be performed on the Auburn residence. She said that the Deceased carried out extensive renovations and repairs, such as adding a bathroom, constructing a new kitchen, knocking down a chimney, and installing French doors and cupboards, and constructing a roofed patio. He also installed a burglar alarm. The Plaintiff said that it was the intention of herself and the Deceased to divide the Auburn property into two flats, for the purpose of them residing in one such flat and renting out the other.

15 There was located at the Greenacre property a self-contained residential apartment (which I gather to be of the kind known as a “granny flat”). It was the practice of the Deceased to rent out that granny flat. Evidence was given by a tenant of that granny flat, Ivars Brugzulis, who had resided in the granny flat for a period of about two years, from late 1998 until December 2000. During that period Mr Brugzulis rarely saw the Deceased, who, he said, came to the premises every few days to collect the mail. Mr Brugzulis said that the Deceased told him, “I have a girlfriend named Mary Dunk. When I am not here [at the Greenacre house] I am staying at her place”. Mr Brugzulis did not, however, meet the Plaintiff until he visited the Deceased in Concord Hospital shortly before his death. The Plaintiff was present at the hospital on that occasion. So far as Mr Brugzulis was aware, the Deceased had no other female friends apart from the Plaintiff.

16 Evidence was, however, given by various neighbours who had lived in Roberts Road, Greenacre. Mrs Thelma Mitchell resided at 110 Roberts Road, next door to the Deceased’s premises. According to Mrs Mitchell, who observed the Deceased during the forty years whilst they were next door neighbours, his absences from the house were only for one or two days at a time. The Deceased did not tell Mrs Mitchell that he resided anywhere other than at the Greenacre property.

17 It should, however, here be recorded that the relationship between Mrs Mitchell and the Deceased was far from harmonious. She caused him to be charged with assaulting her, for which offence the Deceased was placed on a bond for eighteen months. It would appear that Mrs Mitchell had also caused the Plaintiff to be charged with offences on two previous occasions, and had summoned the police to the Deceased’s premises on many occasions.

18 Similarly, evidence was given by Mrs Rosemary Helga Bednorz, who resided at 106 Roberts Road, Greenacre, and was the next door neighbour of the Deceased on the other side from Mrs Mitchell. Mrs Bednorz said that during the forty years that she was next door neighbour to the Deceased she often talked with him when she saw him at his property, she saw him tending the garden and she saw house lights go on at night. Similarly, she was aware that if the Deceased was away from the property it was only for a day or two at a time. Mrs Bednorz said that she knew that the Deceased had a friend called Mary, because on three or four occasions he had said to Mrs Bednorz, “If you wonder where I am, I am over at Mary’s doing some repairs”. The only occasion when Mrs Bednorz saw a lady identified as Mary at the Greenacre property was after the Deceased was discharged from the hospital in October 1999, and a visitor thus identified brought food to the Greenacre property on one occasion.

19 Evidence was also given by Dr Vilmos Rudolph, who was the Deceased’s treating doctor from 1996 until the Deceased went into hospital in October 1999. Dr Rudolph made house calls to the Deceased at the Greenacre property on four occasions in September and October 1999. On none of those occasions did Dr Rudolph see any other persons at the house. Neither did the Deceased mention to him the existence of a partner or a spouse. According to Dr Rudolph the Deceased received assistance twice a week from Bankstown Home Nursing Service. (The Plaintiff said that that assistance was given at the Auburn property.) Dr Rudolph was, however, concerned because, as he understood it, the Deceased lived alone, and at that time was very ill. On 11 October 1999 the Deceased was admitted to hospital, where he remained until his death on 1 December 1999. Although in hospital documents relating to various admissions of the Deceased the Plaintiff is disclosed as the person to be notified, she is described therein as a “friend” or “friend/neighbour” or “other”, but not as the Deceased’s de facto partner.

20 Evidence was given by Mr Barry Donnelly, brother of the Deceased, and the sole beneficiary entitled under the terms of the will of the Deceased. His evidence was essentially of a negative nature. Mr Barry Donnelly was unaware of the Plaintiff. The Deceased did not mention to his brother her existence, or the fact that the Deceased spent any time at the Plaintiff’s residence at Auburn. Mr Barry Donnelly said that when he telephoned the Deceased at the Greenacre property it was the Deceased who answered the telephone.

21 None of the evidence given by the various neighbours, the doctor or Mr Barry Donnelly, is in fact inconsistent with the assertion of the Plaintiff that it was the practice of the Deceased to spend several nights a week at her residence in Auburn. Indeed, the evidence of Mr Brugzulis supports those assertions of the Plaintiff, at least for the period of two years from late 1998 until December 2000 whilst Mr Brugzulis was occupying the granny flat. The failure of the Plaintiff to inform various persons (including neighbours, his doctor, his pharmacist and his own brother) of the existence of the Plaintiff or of the fact that he was spending most nights at her residence may have been due to the character of the Deceased, who appears to have been of a reclusive nature.

22 Although relevant to the question of whether or not the Plaintiff was the de facto spouse of the Deceased at the time of his death, the fact (which I accept) that the Deceased was in the habit of spending several nights each week at the residence of the Plaintiff is not of itself conclusive of whether or not such a de facto relationship existed between the Plaintiff and the Deceased. As will later appear, the nature and extent of common residence of the Plaintiff and the Deceased is only one of a number of matters which may be relevant in determining whether a de facto relationship existed between them.

23 It is also here relevant that during his final period in hospital the Deceased was on 21 October 1999 visited by Mr Leo Bernard Muggleton, solicitor. That visit was apparently arranged by the social work department of the Royal Prince Alfred Hospital, at the request of the Plaintiff. On the occasion of that visit the Deceased gave to Mr Muggleton instructions for the preparation of a fresh will, by which he desired to leave the entirety of his estate to the Plaintiff. (It will be recalled that she was the substitutionary beneficiary named in his then existing, and final, will.) At the end of the visit it was left that the Deceased would contact Mr Muggleton when he was discharged from hospital, with a view to the Deceased and the Plaintiff coming to Mr Muggleton’s office, for the purpose of such a will being executed by the Deceased, and, apparently, for the preparation of a will for the Plaintiff. Those plans were overtaken by events. The Deceased after that visit from Mr Muggleton remained in hospital until his death on 1 December 1999. Mr Muggleton, not hearing further from the Deceased, wrote to him, that letter ultimately being received by the Plaintiff on 2 December 1999, the day after the Deceased had died.

24 I have had the benefit of receiving from Counsel for the respective parties written outlines of their submissions. Those written outlines will be retained in the Court file.

25 By paragraph (a) of the definition of eligible person in section 6(1) of the Family Provision Act that phrase means, relevantly,

A person:

…

(ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death.

26 The phrase “domestic relationship” is by the same section given the same meaning as in the Property (Relationships) Act 1984.

27 By section 5 of that latter Act a “domestic relationship” is defined to mean:

(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.

28 As I understand it, the Plaintiff in the instant case does not assert that her relationship with the Deceased was other than a de facto relationship; in particular, she does not assert that it was a “close personal relationship” of the nature described in section 5 of the Property (Relationships) Act.

29 When significant amendments (including the title of the Act) were in 1999 made to the De Facto Relationships Act 1984 by the Property (Relationships) Legislation Amendment Act 1999, a new definition of de facto relationship was inserted in the legislation. For the previous definition (contained in section 3(1)) there is now set forth a definition in section 4(1) as follows:

For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.

30 Subsection (2) of section 4 provides,

In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are 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 interdependence, 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.

31 It is interesting to observe that the foregoing nine matters, which were part of the new section 4 inserted in the Act by the amending legislation of 1999, reflect (albeit not in precisely identical words) the ten factors referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 at 459.

32 Subsection (3) of section 4 provides,

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.

33 In the instant case the relationship between the Plaintiff and the Deceased obtained from at least the return of the Deceased to Australia in 1967 until his death more than thirty-two years later. Throughout that period the Auburn property was the common residence of the Plaintiff and the Deceased for several days and nights each week. The Deceased had his own keys to that property, and kept his clothes there. He and the Plaintiff shared a bedchamber. A sexual relationship existed between the Plaintiff and the Deceased throughout the entire period of the relationship.

34 In financial matters the Plaintiff and the Deceased largely kept their affairs separate. They did not conduct any joint bank account. Nevertheless, the Plaintiff on at least one occasion advanced to the Deceased a not insignificant amount of money. Exhibit G is an acknowledgment from the Deceased that he had on 29 January 1998 received from the Plaintiff an advance of $5,000, “to be paid back on demand”. In addition, the purchase of gold bullion and diamonds (to the existence and acquisition whereof I shall later in this judgment return) was, according to the Plaintiff, in the nature of a joint acquisition by herself and the Deceased.

35 There was a considerable quantity of evidence as to the mutual commitment of the Plaintiff and the Deceased to a shared life. The Plaintiff herself gave direct evidence in that regard. There was also evidence from John Pollock, who had become acquainted with the Plaintiff in 1976, when he moved into the house next door to the Auburn property, and resided there for a year or so. He has maintained his acquaintance with the Plaintiff to the present time. Through the Plaintiff he became acquainted with the Deceased. Mr Pollock said that he recalled the Deceased on one occasion saying to him concerning the Plaintiff, “I love her so much I would kill myself if anything happened to her”. There was evidence, from Mr Pollock as well as from the Plaintiff herself, of maintenance work performed by the Deceased upon the Plaintiff’s residence.

36 It is only a small matter, but the Plaintiff and the Deceased conjointly acquired a canine pet, “Fifi”, to which both of them appear to have been strongly attached.

37 Neither the Plaintiff nor the Deceased had any children.

38 The Plaintiff performed for the Deceased normal household duties, such as cooking, washing and ironing clothes, whilst the Deceased was in occupation at the Auburn residence. It was the evidence of the Plaintiff that when the Deceased became ill towards the end of his life the Deceased stopped making visits to his residence at Greenacre. He was attended at the Plaintiff’s Auburn residence by the Home Nursing Service. The Plaintiff purchased all his medications from the local pharmacy and she cared for the Deceased until he entered hospital.

39 On the occasions when they travelled or holidayed together, the Plaintiff and the Deceased held themselves out as being a couple. Indeed, the Deceased himself on occasion proffered, and answered to, the surname Dunk. When the Plaintiff was having problems concerning structural work performed at the residence next door to the Auburn property, not only did the Deceased complain to the Auburn Municipal Council in that regard, but he also was interviewed by the local newspaper. In an article published in the issue of that newspaper on 5 June 1991 the Deceased is referred to throughout as “Mr John Dunk” or “Mr Dunk”, and it appears from that article that the Deceased used the surname “Dunk” in his communications on that topic with the Auburn Council. In that article the Auburn property is, in fact, referred to as the Deceased’s house. The Deceased appears to have perceived no problem in being regarded as the spouse of the Plaintiff, and in using the same surname as the Plaintiff.

40 According to the Plaintiff, since her arrival in Australia she has always called herself Mrs Dunk, although she has never been married. She occasionally called herself Mrs Donnelly, if circumstances made it appropriate for her to do so.

41 In disputing the existence of the alleged de facto relationship between the Plaintiff and the Deceased, the Defendant relied upon the fact that the parties did not occupy the same residence for seven days a week. I have already expressed my conclusions in that regard.

42 Further, the Defendant points to the fact that the Plaintiff during the lifetime of the Deceased was in receipt of a single pension from the Department of Social Security, and that she never disclosed to the pension authorities the fact that she was, as she asserts, in a de facto relationship with the Deceased. Under cross-examination she frankly admitted that she did not want the Department of Social Security to know of the existence of that relationship, and agreed that she and the Deceased deliberately “worked the system” to get money from the Department of Social Security. That conduct on the part of the Plaintiff reflects no credit upon her. However, it is not determinative of the question whether or not a de facto relationship existed between herself and the Deceased.

43 I have been taken by Counsel for the Defendant to the recent decision of the Court of Appeal in Marshall v Carruthers [2002] NSWCA 47. The essential matter with which the Court of Appeal was concerned in that case was whether the provision made by the testator in favour of his de facto widow was at the time of the determination “inadequate for the proper maintenance, education and advancement in life” of that plaintiff. In that case, which was a claim by a de facto widow of a testator, Young CJ in Eq said [63]

However, the strength of the claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion, also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship.

44 As I read that judgment, the element of commitment to mutual support which, in His Honour’s view, adds strength to a legitimate claim, is not determinative of the existence of a de facto relationship. In Marshall v Carruthers there was no dispute that the relationship existed. Such commitment is, however, a legitimate matter to be taken into consideration (in the light of section 4 of the Act) in determining whether or not a de facto relationship existed between the present Plaintiff and the Deceased.

45 The Defendant also relies upon the somewhat strange conduct of the Plaintiff in choosing not to be involved in the necessary arrangements for the disposition of the Deceased’s remains after his death (she being with him at the hospital when he died) and her absence from the Deceased’s funeral as supporting the non-existence of a de facto relationship between them. In light of the Plaintiff’s explanations of that conduct I do not agree with the Defendant’s submission in this regard.

46 Despite the foregoing submissions on the part of the Defendant, I am satisfied, in all the circumstances of this case, that a de facto relationship obtained between the Plaintiff and the Deceased from the time when the Deceased returned to Australia in 1967 until his death more than thirty-two years later.

47 In consequence, therefore, the Plaintiff is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. In the light of the conclusion which I have just expressed, it is not necessary for me to deal with the alterative submission on behalf of the Plaintiff that she is also an eligible person within paragraph (d) of the definition (being a member of the same household as the Deceased, and being partly dependent upon the Deceased). However, were it necessary for me to do so, I would incline to the view that the Plaintiff is also an eligible person under paragraph (d) of the definition.

48 It will be appreciated that the Plaintiff is the only eligible person in relation to the Deceased. There was no suggestion made on the part of the Defendant that the sole beneficiary, Mr Barry Donnelly, was an eligible person.

49 In a claim under the Family Provision Act it is necessary for the applicant to establish, if she can, that she has been left without adequate provision for her proper maintenance and advancement in life. This is he first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 per Mason CJ, Deane and McHugh JJ.

50 It must be emphasised that it is incumbent upon an applicant for an order for provision to place before the Court as fully and as frankly as possible all information concerning the financial and material circumstances of the applicant.

51 The Plaintiff’s only significant asset is her Auburn residence. That property is unencumbered. To it the Plaintiff has ascribed a value of about $180,000. In her original affidavit evidence the Plaintiff disclosed other assets, being an amount of about $20,000 on deposit with Westpac and about $1800 in various bank accounts. Her income consists of the age pension ($380 a fortnight) and an English pension (about $800 a quarter); that is, a total income of about $503 a fortnight.

52 Until, in a response given by the Plaintiff during the course of cross-examination, there was unexpected reference to gold bullion and diamonds held by her in a safe deposit box, the impression given by the Plaintiff to the Court was that she had no assets other than the house and its contents and her own personal effects and the foregoing amounts in banks. There was no very precise evidence concerning the expenditure of the Plaintiff.

53 The unexpected reference by the Plaintiff to the gold bullion and diamonds (a topic concerning which none of the legal representatives appeared to have had any previous knowledge) resulted in it being necessary for the hearing to be adjourned for more than two months, to enable additional evidence to be placed before the Court. That additional evidence revealed that the two diamonds had a total second-hand valuation of $3,229, and that the present value of the gold bullion was $25,018.

54 The inspection of the contents of the safe deposit box which took place during the period of the foregoing adjournment also disclosed the presence therein of an amount of $6,925 in cash. It would appear that the Plaintiff had forgotten about that cash fund at the time when she swore her previous affidavits. In her affidavit of 24 September 2002 she said (at paragraph 3) that she was surprised that there was that cash amount in the box, and that she had indeed forgotten about the box at the time of swearing her earlier affidavits. During the period of the adjournment the Plaintiff used some of the moneys from that cash fund to pay various outstanding accounts (including council rates, water rates, house insurance, grass cutting, electricity, gas and telephone) and an amount of $3,508 in respect to disbursements incurred in the present proceedings. Of that cash fund there remained about $2,000 at the time of the resumption of the hearing on 4 October 2002.

55 Further, material from building contractors revealed that the Auburn property is in need of quite significant maintenance work and repairs. An estimation of the cost of such maintenance and repairs was given by an architect on behalf of the Plaintiff in a total amount of $40,418. My reading of the evidence of a structural engineer, a building consultant and a building inspector filed on behalf of the Defendant is that essential repairs would cost about $13,400. That figure would not include painting, carpeting, a new bathroom and relocation of an outside privy (all of which are somewhat curiously described by the building inspector as being of a “cosmetic” nature or purpose).

56 In approaching the claim of the Plaintiff the Court must take into consideration any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of Mr Barry Donnelly, the sole beneficiary. I have already recorded that the Defendant has made a partial distribution to Mr Barry Donnelly in an amount of $83,000.

57 The evidence from the building contractors and the photographs of the Auburn property disclose that the Plaintiff’s residence is falling into disrepair and is extremely shabby in appearance. During his life the Deceased contributed to the comfort of the Plaintiff’s home. He is no longer present to do so. It is apparent that the Plaintiff lives in modest circumstances.

58 The Plaintiff has a pressing need for maintenance and repair work to be performed on her house property. In addition, at the age of eighty, she requires a fund which will be sufficient to meet unexpected contingencies, and to improve her obviously very modest lifestyle. The appropriate total amount in my conclusion is $100,000. That will be sufficient to meet the necessary work on the Auburn house ($40,418) and to provide a fund (about $59,500) for unexpected contingencies and for enhancement of the Deceased’s lifestyle.

59 Mr Barry Donnelly, who had little contact with the Deceased during the latter part of the Deceased’s lifetime (especially since the death of their mother in 1982), is in receipt of a married age pension of $676 a fortnight. His only assets consist of the interim distribution of the estate ($83,000), 505 shares in NRMA, a Subaru sedan motor car valued at $17,500, and an account with Endeavour Credit Union in an amount of $25,000. Mr Donnelly and his wife reside in rented accommodation, for which they pay $380 a fortnight. Mr Donnelly was born on 24 January 1934 and is sixty-nine years of age. Both he and his wife are in comparatively good health. In his affidavit evidence Mr Donnelly expressed a wish to purchase a suitable family residence in the area in which he presently resides (being Chevron Island in Queensland). The purchase of a home unit in that location would cost about $120,000, whilst a house would cost about $200,000. He also expressed a desire to have some fund of savings.

60 It should be emphasised that it is for the Plaintiff to establish her own case upon its own merits. Mr Barry Donnelly, as the sole beneficiary under the will of the Deceased, does not have to prove anything. The competing claim of Mr Donnelly upon the testamentary bounty of the Deceased can have the effect of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. That competing claim of Mr Donnelly cannot have the effect of enhancing the claim of the Plaintiff.

61 Nevertheless, I do not consider that claim as being of a particularly high order. It is relevant to the nature of that competing claim that Mr Barry Donnelly had little contact with his brother after 1982. Further, in respect to that competing claim I regard it of considerable significance that the Deceased had shortly before his death given instructions to a solicitor to prepare a fresh will under which the Plaintiff should be the sole beneficiary, and which should make no provision for Mr Barry Donnelly, and that it was only the fact that the Deceased did not thereafter leave hospital which prevented such will from being made and executed. Further, since Mr Barry Donnelly is not an eligible person in relation to the Deceased, had such a fresh will been prepared, Mr Barry Donnelly would have received no benefit thereunder, and would not have had the standing to bring any claim for provision out of his brother’s estate.

62 Mr Barry Donnelly has already received a partial distribution in the sum of a little over $83,000. If the Plaintiff receives a legacy of $100,000 from the amount of about $140,000 presently available for distribution, Mr Barry Donnelly will receive the balance of about $40,000. Thus he would receive from the estate of the Deceased a total amount of about $123,000. With that amount he would be enabled to purchase as a residence a suitable home unit in the locality in which he presently resides (the price of such a home unit, according to his affidavit of 14 June 2001, being $120,000; I note that in his later affidavit he speaks of the price of a suitable villa or duplex being in the range from $125,000 to $180,000). In any event, however, I do not consider that the competing claim of the beneficiary is such as would have the effect of reducing, let alone extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise have established. I consider that she has established an entitlement to a legacy in the sum of $100,000, and I propose so to order.

63 I make the following orders:

(1). I order that the Plaintiff receive out of the estate of the late John Raymond Joseph Donnelly (“the Deceased”) a legacy in the sum of $100,000, such legacy not to bear interest if paid on or before 25 February 2003, and if not so paid, to bear interest at Supreme Court rates.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

(3). The exhibits may be returned.

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Last Modified: 02/12/2003