Griffiths v Westernhagen

[2008] NSWSC 851

CITATION:	Griffiths v Westernhagen [2008] NSWSC 851
HEARING DATE(S):	10 March, 1 April, 13 May and 12 June 2008
JUDGMENT DATE :	19 August 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Provision made for plaintiff by way of a legacy of $100,000 in lieu of the provision made for her in the will.
CATCHWORDS:	SUCCESSION [320] - Family provision - Principles upon which relief granted - Applications of children - Adult children generally – Relevant principles - Further provision made by way of a legacy for one daughter.
LEGISLATION CITED:	Family Provision Act 1992 ss 6, 7, 9 & 12
CATEGORY:	Principal judgment
CASES CITED:	Ball v Newey (1988) 13 NSWLR 489 Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 Benney v Jones (1991) 23 NSWLR 559 Day v Perpetual Trustee Co Ltd [2001] NSWSC 394 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hughes v Hughes NSWCA 6 June 1989 unreported Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 Hunter v Hunter (1987) 8 NSWLR 573 Massingham v Massingham NSWCA 27 June 1996 unreported Nicholls v Hall [2006] NSWSC 1377 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Petrohilos v Hunter (1991) 25 NSWLR 343 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker NSWSC 17 May 1996 unreported
PARTIES:	Diane Maree Griffiths (P) Megan Lynette Westernhagen (D)
FILE NUMBER(S):	SC 1624/07
COUNSEL:	C M Wilson (P) J S Drummond (D)
SOLICITORS:	McCabe Terrill Lawyers Pty Limited (P) Solari Legal (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 19 AUGUST 2008

1624/07 DIANE MAREE GRIFFITHS v MEGAN LYNETTE WESTERNHAGEN

JUDGMENT

1 HIS HONOUR: These proceedings are brought by an adult daughter under s 7 of the Family Provision Act 1992 (“the FPA”) for further provision out of the estate of her mother (“the testator”). The central question to be determined is whether inadequate provision was made by the testator for the plaintiff’s maintenance and advancement in life and, if so, whether further provision ought be made for the plaintiff out of the testator’s estate.

FACTS

The Estate

2 The testator, Elsie Louisa Westernhagen, was born on 21 January 1925. She married Alan Westernhagen on 24 February 1945, and remained married to him until his death on 22 September 2002. Until the death of her husband, the testator lived at 44 The Esplanade, Sylvania (“the family home”). Following his death, the testator sold the family home and purchased a villa, also in Sylvania (“the villa”), where she lived until her death.

3 There were four children of the testator’s marriage: Toni Rosslyn Smith, born 27 May 1946 (“Toni”), Margaret Mary Radford, born 1 June 1948 (“Margaret”), Diane Maree Griffiths, born 30 September 1950 (“the plaintiff”) and Megan Lynette Westernhagen, born 9 November 1962 (“the defendant”).

4 In January 2004, the testator was diagnosed with multiple myeloma. She died on 17 June 2006.

5 The testator made a will on 12 August 2005 by which she appointed the defendant as her executor and the sole trustee of her estate. She gave to the defendant the villa and all her furniture, clothing, jewellery and personal effects. She left the residue of the estate to be divided equally among her remaining three children: the plaintiff, Toni and Margaret. The testator set out the reasons for these provisions in her will as follows:

“a Megan has lived with me all of my life and my current home is her home. She has been the primary carer for my late husband and myself over the years and in particular since February 2004 when I was diagnosed with cancer she has been involved in caring for me on a daily basis over all hours of the day and night. This has included her having taken me to numerous medical appointments. Megan has had to give up working on a full time basis and she is currently only able to work on a part time basis which has to be flexible so that she can leave work if I need her or she can cancel any proposed shift if I need her to assist me in relation to my health or medical appointments. I acknowledge that my daughters Margaret and Diane also provide some assistance to me but Megan is the primary carer for me. Further, Megan is single and has no one else providing her with any means of support and is considerably younger than my other children;

b In relation to Toni, I have not had a close relationship with her for the last 14 years. For the first 10 years of that period I did not see her at all. I would during that time speak to her on rare occasions by telephone and that was when I would contact her. Over the last 3-4 years I have had more frequent contact with Toni but still only see her on average two times a year and speak to her on the telephone every 2-3 weeks even though she only lives at Barden Ridge. Although Toni is separated from her husband he still provides her with financial support and she has her own home;

c In relation to Margaret, I have a good relationship with her. I feel that the provision I had [sic] made for her in my Will is adequate due to the fact that she is adequately provided for through her husband and her own employment. Margaret and her husband have their own home and also her husband conducts his own trucking business;

d In relation to Diane, I have a good relationship with her. She works full time. She owns her own home unit and also owns an investment property. I believe that the provision in my Will for her is appropriate in all of the circumstances.”

6 Probate of this will was granted to the defendant on 11 August 2006. The assets of the estate, as set out in the inventory attached to the probate, were as follows:

ASSETS

Real estate	Villa in Sylvania	$ 750,000.00
Bank accounts	NAB A/c No 56-***-****	176,159.87
NAB A/c No 54-***-****	19,687.64
Furniture, clothing, jewellery, personal effects	10,000.00
Total	$ 955,847.51

7 The parties have agreed that, for the purposes of these proceedings, the value of the villa will be taken as $625,000. The residue of the estate, leaving the villa and the personal effects out of account, was approximately $195,000, of which a third is $65,000.

8 Following the grant of probate, the defendant distributed the villa, furniture, clothing, jewellery and personal effects to herself. The balance of the estate was paid into the trust account of her solicitors, Solari Legal (“the trust account”). On 26 October 2006, the defendant made a partial distribution of the assets of the estate by way of a payment of $40,000 to each of Toni, Margaret and the plaintiff.

9 On 5 June 2007, a deed of release was entered into between the defendant, Toni and Margaret, whereby each of Toni and Margaret was to be paid out of the estate $25,087.73 in addition to the $40,000 that she had already been paid. Those additional sums have since been paid. This means that Toni and Margaret each received one third of the residuary estate as it stood when probate was granted. In return Toni and Margaret each released the estate from any further claim.

10 The filing fee on the probate application, legal costs associated with that application and a small part of the legal costs associated with defending this claim have also been paid out of the trust account. As at 6 March 2008, the balance of the trust account was $8,483.71.

11 If the villa were sold and the estate had to bear the outstanding costs of these proceedings (which there seems to be no dispute are in the vicinity of $95,000), there would be left a fund of approximately $505,000, out of which the plaintiff could be paid her outstanding entitlement under the will or any greater provision made for her by the Court, with the balance passing to the defendant.

The Plaintiff

12 The plaintiff lived in the family home during the whole of her schooling and while she was training as a primary school teacher, moving out in 1970 to take up employment as a teacher at Ingleburn Primary School.

13 In 1974, she married Terence Griffiths, with whom she had three children, Mark, born 14 September 1974, Michael, born 5 February 1979, and Ashleigh, born 24 November 1980. She also has two stepchildren from that marriage, Melinda, born 12 September 1966 and Matthew, born 21 October 1969, who are both financially independent of the plaintiff. The plaintiff also has four grandchildren.

14 Between 1977 and 1981, the plaintiff and her family lived in Canberra and then the United States of America, due to her then husband’s work commitments with the armed forces. In 1982, the family returned to Sydney and from then until the testator’s death the plaintiff resided in close proximity to the testator.

15 In 1992, the plaintiff ceased her employment as a school teacher. In 1999, she obtained fulltime employment with the Commonwealth Public Service, where she has worked until the present, currently as the Deputy Special Projects Registrar for the Sydney office of the Australian Federal Police. The plaintiff is in a permanent fulltime position that involves ensuring that the operational activities of the Australian Federal Police “conform to AFP National Guidelines, AFP Practical Guidelines and legislative requirements.”

16 The plaintiff and her husband separated in 1999 and divorced on 22 April 2000. A property settlement took place between the two in 2001. Following the settlement, the plaintiff purchased her current residence, a home unit in Gymea, and invested the remaining money in superannuation and a savings account. She has received no financial support from her ex husband since the settlement.

17 According to medical reports by the plaintiff’s general practitioner, Dr Roslyn Ridgeway, dated 25 July 2007 and 30 June 2008, and the plaintiff’s treating chiropractor, John Kelly, dated 25 January 2007, that are in evidence, the plaintiff suffers from the following health problems:

(a) mild chronic lymphoedema in her back legs;
(b) chronic back problem;
(c) lack of balance;
(d) intermittent stiffness in the neck;
(e) jaw clicking and tempero mandibular joint dysfunction (limited chewing power);
(f) intermittent pains in right chest and right axilla;
(g) prone to sinusitis;
(h) left knee problem;
(i) mild concentration difficulties; and
(j) irritable bowel syndrome (“IBS”).

18 In their opinion, the above health problems were exacerbated by a car accident in 2005 and, in John Kelly’s opinion, the plaintiff’s back and neck problems are increased by the extensive computer work required by the plaintiff’s employment. Dr Ridgway commented, that it “would be preferable for Mrs Griffiths to be able to reduce her workload and work hours and/or retire early” to alleviate these problems.

19 Perhaps the most serious of these problems is the IBS. On her own account, the IBS causes the plaintiff intense lower abdomen cramps, severe pain, vomiting, going frequently to the toilet, tiredness and feeling worn out. The plaintiff has suffered from these symptoms since 1994, but IBS was not diagnosed until 2005. Dr Ridgway referred the plaintiff to Dr Peter Gottlieb, a gastroenterologist and consulting physician. In his report dated 25 March 2008 that is in evidence, Dr Gottlieb expressed the opinion that the plaintiff’s IBS symptoms are exacerbated in a stressful environment and that these symptoms will continue as long as she remains under stress. In a subsequent report of 13 May 2008 he stated that IBS has no cure, nor any specific treatment.

20 The plaintiff and the testator had a loving relationship. Except for the four year period when she lived in Canberra and the United States due to her ex husband’s work commitments, the plaintiff and the testator visited each other regularly. Until the testator’s illness was diagnosed, they saw each other for social occasions at least once a month and on other occasions such as birthdays, Mother’s Day, anniversaries and Christmas celebrations. The plaintiff and her ex husband assisted the testator and her husband in the sale of their wholesale business in 1997 (as to which, see [26] and [27] below). After her divorce, the plaintiff visited the testator weekly for dinner until she purchased her present home in Gymea. From the time of the testator’s diagnosis in 2004, the plaintiff visited the testator regularly and assisted in her care, rearranging her work commitments every Monday fortnight so that she could attend to the testator’s medical needs and provide relief to the defendant. She was with the testator at the time of her death in June 2006.

21 The plaintiff has an annual salary of about $72,000, with a weekly net income in the vicinity of $948. Her weekly outgoings total $1,139. Accordingly, it is the plaintiff’s evidence that her expenses exceed her income by $191 per week and that she is using her savings to meet this deficit.

22 Her assets are as follows:

(a) home unit in Gymea $420,000 (subject to security for loans to daughter of $55,000 and son $60,000);
(b) home unit in Coolum Beach, Queensland $315,000 (investment property subject to mortgage of $292,000);
(c) maxi Savings Account $120,000;
(d) superannuation $99,000;
(e) motor vehicle $18,500; and
(f) furniture $20,000.

23 The plaintiff’s daughter, Ashleigh, currently receives financial assistance from the plaintiff of $500 per week. Additionally, the plaintiff purchased an $8,000 diabetes pump for her daughter in 2005. The plaintiff submitted that the weekly assistance is provided to her daughter because of her daughter’s pregnancy, because of medical complications caused by her Type 1 diabetes and because of her resulting incapacity to work during the pregnancy. Further, the plaintiff said that, due to these medical complications, it is likely that she will be required to relocate to Queensland to care for her daughter for the remainder of her pregnancy.

24 In addition to the above, the plaintiff has taken out two loans (as the primary borrower) for the benefit of her children, Ashleigh and Mark, providing as security her home in Gymea. To Ashleigh she has lent $55,000 and $60,000 to Mark. Both children have been making periodic repayments of the loans. In the event that the children’s obligations are not honoured, the plaintiff will be liable for the repayments.

The Defendant

25 The defendant is considerably younger than her other three siblings, being 12 years younger than the plaintiff. The defendant has never married and has no children. She lived for the majority of her life at the family home and, after the death of her father, at the villa with the testator until her death. She had a close relationship with both the testator and her father. The defendant completed her Year 10 School Certificate in 1978 at Gymea High School and completed a secretarial course at Cambridge Secretarial College.

26 In 1978, the testator and her husband commenced the wholesale business A E Westernhagen & Co that sold cake making and decorating supplies (“the wholesale business”). In 1978, they purchased a retail business, Cake Decorators Suppliers trading as “the Honey King”, selling cake making and decorating supplies (“the retail business”). In 1979, following the completion of her secretarial course, the defendant was employed full time by her parents on award wages in the retail business to look after its day to day management. She continued employed there until 1997.

27 In 1997 the wholesale business was sold with the assistance of the plaintiff and her husband. Also in 1997, the testator and her husband transferred the retail business to the defendant for no consideration. The defendant operated the business from 1997 until 1999 as its sole proprietor, receiving approximately $430 gross per week. In 1999, she closed the business.

28 Following the closure of the retail business, the defendant obtained part time employment at K-Mart, Sylvania, first as a checkout operator and later as a service coordinator. The defendant now works at K-Mart, Sylvania in the book department on a permanent part time basis of 35 hours per week.

29 Following the testator’s diagnosis in January 2004 with multiple myeloma, the defendant became the testator’s primary carer until her death. The defendant worked three days a week and arranged her work around the care and medical treatment requirements of the testator. This included caring for the testator during the majority of the week, driving the testator to and from her medical appointments, attending to the testator’s treatments and housekeeping and maintaining the villa (except for cleaning the testator’s bathroom). From the time when the testator was hospitalised on 26 May 2006 until her death in June 2006, the defendant took leave from her work to care for the testator. She was with the testator on the day of her death. The defendant continues to reside in the villa.

30 In a report, dated 29 June 2007, that is in evidence the defendant’s general practitioner, Dr Ros Maskiell, stated that the defendant has ongoing health problems related to an under active thyroid (hypothyroidism) and depression resulting from these proceedings.

31 The defendant’s financial circumstances are set out below. The defendant stated that her weekly net income is around $479 and her outgoings are $437. The defendant’s assets are as follows:

(a) villa in Sylvania $625,000 (unencumbered, transferred in accordance with the testator’s will);
(b) St George Bank Savings account $6,000;
(c) St George Bank Portfolio cash management account $14,479;
(d) superannuation $37,000;
(e) Telstra shares (400 shares at $4.68) $1,872;
(f) IAG shares (325 shares at $5.72) $1,859;
(g) motor vehicle $12,000;
(h) estate furniture $10,000 (transferred in accordance with the testator’s will); and
(i) personal effects and furniture $600.

32 It should be noted that, in 2004, the testator made a gift to the defendant of $20,500 for the purchase of a Toyota Corolla motor car. The testator did not drive and the defendant used this car to transport the testator to her various medical appointments and for the maintenance of the villa as well as for her own personal use.

WITNESSES

33 The plaintiff and the defendant both gave oral evidence before me. Each gave a credible account of the relationship between herself and the testator, her financial position and, in the case of the plaintiff, her medical condition. There has been no attack made by either party on the credit of the other.

THE LAW

34 As the testator’s daughter, the plaintiff is an “eligible person” pursuant to s 6 of the FPA.

35 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208 - 210) that the Court, in determining an application for provision under the FPA, is required by ss 7 and 9 to carry out a two stage process. The first stage requires a determination “whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life”. The second stage, which arises if that determination be made in favour of the applicant, is “to decide what provision ought to be made out of the deceased’s estate for the applicant”. The determination of the first stage “calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty”. The correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of “moral duty” or “moral obligation”, or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal subsequently determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham NSWCA 27 June 1996 unreported.

36 The matter was revisited in the High Court in Vigolo v Bostin (2005) 221 CLR 191, where a majority of the Court, Gleeson CJ, Callinan and Heydon JJ, expressed the view that the concepts of “moral duty” and “moral obligation” may be useful guides when construing the FPA. Gleeson CJ at [15] – [25] doubted that there was any vice in references to “moral duty”, provided it was regarded as a form of shorthand and not allowed to operate as a gloss upon the statute. Callinan and Heydon JJ in their joint judgment said at [117] “that moral duty and moral obligation may be relevant and within the contemplation of the Act”. Gummow and Hayne JJ in their joint judgment at [73] differed in their view on this matter and thought it “better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language”. Despite this difference, the Court took the view that Singer v Berghouse was an appropriate guide to the construction and operation of family provision legislation: see [5], [73] and [112].

37 I shall approach the matter as prescribed in Singer v Berghouse. This being a claim of an adult child of the testator, I shall simply carry out the two stage process in relation to the plaintiff in the context of this family and this estate. The appellate Courts have negatived that there is any “special” test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Vigolo v Bostin supra at [26].

38 The proper approach to a claim by an adult child received close consideration by Bryson J in Gorton v Parks (1989) 17 NSWLR 1. His Honour (at [10]) regarded “the bare fact of paternity” as of very great importance in relation to “morality” where the deceased has failed to discharge his or her duty as a parent. But, as to the bare fact of parenthood, without detracting from what Bryson J said, it must be remembered that Meagher JA had previously said in Hughes v Hughes NSWCA 6 June 1989 unreported that the duty to make provision arose in the circumstances of that case as follows:

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.”

39 In Walker v Walker NSWSC 17 May 1996 unreported, Young J, as his Honour then was, conducted a compendious review of the authorities relating to estranged parents and children and said:

“… I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally: see for instance Scales ’ case [ The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9] at 19.”

40 In Day v Perpetual Trustee Co Ltd [2001] NSWSC 394 at [27] Master Macready, as his Honour then was, adopted that formulation of Young J as “sufficient and appropriate” to guide him in the decision of a similar case.

41 This is not a case, as appears above, where the plaintiff and the testator were estranged. However, in my view the approach enunciated by Young J as set out above and adopted by Master Macready is appropriate in this case also and I adopt it in this case.

42 As to dependency as a relevant factor in considering the adequacy of provision made for a plaintiff, the following cases are material. The obligation to support a dependent child has been found to be a relevant factor in determining what is an appropriate provision for the maintenance of a plaintiff: see Hughes v National Trustees supra at 147 per Gibbs J; Goodman v Windeyer (1980) 144 CLR 490 at 498 per Gibbs J; Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [86] per White J.

43 In Ball v Newey (1988) 13 NSWLR 489, Samuels JA considered the meaning of “dependent” and “dependency” at 490:

“’Dependent’ in the ordinary sense of the word, means the condition of depending on something or 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 probablities’. While it is true that here we are concerned with financial dependence and not 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.”

Further, at 492 he said:

“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 … Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 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)”.

See also Benney v Jones (1991) 23 NSWLR 559 at 565 - 566 per Priestley JA; and Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 - 347 per Hope AJA.

44 The time at which adequacy or inadequacy is to be judged is the time at which the Court is determining whether or not to make an order: see s 9(2). Section 12 of the FPA provides that, where the Court makes an order for provision, it may specify the portions of the estate which shall bear the burden of the provision.

SUBMISSSIONS

Plaintiff’s Submissions

45 The plaintiff contended that the provision made for her is inadequate for her maintenance and advancement in life. She contended that a total provision of $150,000 should be made for her from the estate (that is, $110,000 in addition to the $40,000 that she has already been paid as a partial distribution).

46 The plaintiff conceded that, should she succeed in these proceedings, the villa will have to be sold to meet the further provision for her. But this is inevitable in any event to pay the balance of the plaintiff’s entitlement under the will and to provide for the costs of these proceedings. The plaintiff further contended that the defendant has no need for a three bedroom property and that a two bedroom property would be sufficient to meet her needs for accommodation. Dealing with the estate in this manner would enable proper provision to be made for both the plaintiff and the defendant’s maintenance and advancement in life.

47 The plaintiff adverted to the following features of the evidence in support of her claim for further provision: the financial strain caused by the dependency of her daughter Ashleigh; the plaintiff’s ongoing health concerns; and the fragility of her financial position currently and on retirement.

48 The plaintiff is currently making payments of $500 weekly to Ashleigh. These payments commenced in May 2007 to support Ashleigh during a course of study and have continued during a pregnancy when she has been unable to be employed. The plaintiff expects to be providing this payment until at least October 2008, when the baby is due.

49 The plaintiff submitted that she is at the end of her working life, which has been shortened due to her medical condition; that she has no financial security; that she has insufficient funds to meet her needs on retirement; and that she is currently drawing out of her savings to meet her expenses and Ashleigh’s. Attention was drawn to the plaintiff’s age and limited working life, compared with the defendant’s.

50 Further, the plaintiff contended that the testator misunderstood the plaintiff’s financial position when making provision from the estate. In the testator’s reasons for her provisions (see [5] above), it seems that the testator understood that the plaintiff owned her investment property at Coolum Beach outright, whereas she has only a small equity in the property insufficient to meet the plaintiff’s financial needs in the future.

Defendant’s Submissions

51 The defendant submitted that that there was insufficient evidence to support a finding of any dependency upon the plaintiff of her daughter, Ashleigh. Particularly, Ashleigh and her husband do not reside with the plaintiff. There was no evidence in relation to the financial position or position in life of Ashleigh’s husband, nor any evidence as to what Ashleigh’s position will be after the baby is born.

52 Further, there was insufficient medical evidence to prove that the plaintiff’s working life would be shortened as a result of her medical condition. The defendant adverted to the fewness of the days of sick leave taken by the plaintiff as evidence of the negligible impact of her health problems on her employment or future working capacity.

53 Despite the plaintiff’s complaints regarding her financial position, the defendant submitted that, upon retirement, the plaintiff will have resources approximately three times greater than the defendant will have when she is of the same age.

54 The defendant also drew to the Court’s attention the testator’s business experience. She contended that the testator had full appreciation of and gave careful consideration to the financial position of all four of her children, when making her will. The testator did not have any greater obligation to the plaintiff than was met by the provisions in the will and they should not be disturbed.

CONCLUSIONS

55 It was made clear at the outset of the defendant’s submissions that the defendant did not contest the plaintiff’s application on the ground of eligibility. Nor was this a case of the lack of a relationship between the plaintiff and the testator, as that dealt with by Young CJ in Eq in Nicholls v Hall [2006] NSWSC 1377, or of a distant or tenuous relationship only.

56 Before proceeding to carry out the two stage process prescribed in Singer v Berghouse, it is necessary to traverse the facts in a number of regards, making findings as to some disputed matters. The matters I propose to traverse are:

(a) the relative relationships of the plaintiff and the defendant with the testator in her lifetime;
(b) the level of dependency (if any) on the plaintiff of her daughter, Ashleigh;
(c) the plaintiff’s health concerns and the effect (if any) they will have upon her future financial position;
(d) the plaintiff and the defendant’s relative financial positions at present and in the future (especially upon retirement); and
(e) the testator’s understanding of the plaintiff’s financial position at the time of making the will.

57 As to (a), as things stand, the only claim on the estate competing with the plaintiff’s is that of the defendant. The defendant was the primary carer and contributed to the testator’s welfare more than her other three children. It was the testator’s intention to provide accommodation for the defendant from the estate. The defendant would be unlikely to be able to purchase accommodation for herself except with provision from the estate.

58 As to (b), the evidence led by the plaintiff concerning the dependency of her daughter upon her was that she is temporarily providing the daughter with a weekly allowance of $500, borrowed $50,000 for the daughter’s benefit against her own property and bought her daughter a diabetes pump when she needed it. For a relationship of dependency to be established, there must be more than the mere giving of money. Rather there must be a relationship where one party relies on the other for what is required for their ordinary living. The entirety of the relationship and the financial affairs, particularly of the recipient, must be considered in a case such as the present. Ashleigh lives independently of the plaintiff, in Queensland, and no evidence was led by the plaintiff regarding the overall financial circumstances of Ashleigh, or the financial circumstances of her husband or of his earnings, or of what the $500 per week was being used to pay. Furthermore, no evidence was led as to what the situation will be after October of this year. I am certainly not prepared to find on this evidence that Ashleigh is dependent on the plaintiff.

59 As to (c), I accept that the plaintiff has health problems, suffers various uncomfortable symptoms and experiences some difficulty in her day to day working life. However, the medical reports relied on by the plaintiff do not lead to the conclusion that her working life will in fact be reduced as a result of her health problems, although Dr Ridgway states that it would be “preferable” for her to retire early to avoid aggravating them. Further, the plaintiff’s employment records show that she has not often taken sick leave as a result of her health problems. However, the plaintiff’s health problems do cast some shadow over her capacity to continue in her current employment on a full time basis for the remaining seven years of her working life and to that extent threaten her future financial position. In contrast, I consider that the defendant’s medical problems will have a negligible effect on her future employment.

60 As to (d), the financial positions of the plaintiff and the defendant are significantly different. The plaintiff is nearing the end of her working life, while the defendant has some 20 years of employment remaining prior to her retirement. The plaintiff has a weekly net income in the vicinity of $948 and weekly outgoings totalling $1,139. However, these outgoings include $400 per week in repayments on the investment property, which she could dispose of if necessary. She owns her residence. While this is held as security for the borrowings made on behalf of two of her children, Ashleigh (of $50,000) and Mark (of $60,000), both children have been meeting the loan repayments and it seems unlikely that she will become liable for the loans in the future. Her investment property is subject to a mortgage of $292,000 and has an estimated value of $315,000. She does not have sufficient equity in it for it to contribute materially to her financial support. She has $100,000 in superannuation. Upon retirement, she will have in addition cash assets of at least $100,000 and the equity in her home, subject only to the borrowings for her children. In contrast the defendant’s only substantial asset is the villa and, whether or not further provision is made from the estate for the plaintiff, she will probably be forced to sell this property. Her weekly net income is around $479 and outgoings are $437. She currently has superannuation in the vicinity of $37,000, but this should grow considerably during her future years of employment.

61 As to (e), I find that the testator, in formulating the provision for her children in the will, believed that the plaintiff owned her investment property outright and was thus in a better financial situation than was in fact the case.

62 I have followed the two stage process required by Singer v Berghouse. In doing so, I have not lost sight of the importance of not intruding upon the testator’s testamentary freedom, except so far as is necessary to meet the requirements of the FPA.

63 I find that the plaintiff is in a financially vulnerable position leading up to her retirement and that her health problems cast a shadow over her remaining working life and could possibly lead to its shortening. In my view, she has shown a need for provision of a further fund to be used for her future maintenance and to cover contingencies. The conclusion I have reached is that, in all the circumstances, the provision made by the testator for the plaintiff was inadequate.

64 In assessing the further provision that should be made for the plaintiff in all the circumstances, I have borne in mind that the additional provision made for the plaintiff should not prevent the defendant from owning her own accommodation and having adequate provision for her future maintenance or prevent the recognition of the care she provided for her mother during her lifetime. I have come to the conclusion that the provision which should be made for the plaintiff in lieu of the provision made for her in the will is a legacy of $100,000, of which the $40,000 already paid to her is to be taken as a partial satisfaction.

65 The parties should bring in short minutes that reflect my decision. They should include an order if necessary as to which part of the estate should bear the burden of the order for further provision and any necessary ancillary orders. Questions of costs may be raised at that time.

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