Howe v Lowry

[2009] NSWSC 451

CITATION:	Howe v Lowry [2009] NSWSC 451
HEARING DATE(S):	25/05/09
JUDGMENT DATE :	25 May 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	25 May 2009
DECISION:	Paragraph 49
CATCHWORDS:	Family Provision. Application by a daughter left out of the deceased's will. Provision made for plaintiff substantially out of a share passing to a charity.
PARTIES:	Elin Howe v Vance Stanton Lowry and Mark Hennessy (Estate of the late Kenelm Gustav Lowry)
FILE NUMBER(S):	SC 3720/2008
COUNSEL:	Mr M Willmott SC for plaintiff Mr R Wilson for defendants
SOLICITORS:	Mr RJ Foster for plaintiff Mr Mark Hennessy for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 25 MAY 2009

3720/08 - ELIN HOWE v VANCE STANTON LOWRY & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Kenelm Gustav Lowry, who died on 7 June 2007. He was survived by his two children, one of whom is the plaintiff and one of whom is the first defendant.

The last will of the deceased

2 The deceased made his last will on 9 November 2004. Under that will he appointed his son, Vance, and his solicitor, Mr Hennessy, as executors. He provided in cl 3 that his son should have his property, being his principal place of residence, and he provided in cl 4 that the contents should also go to his son. In cl 5 of his estate he left his residue as to one half for a number of his grandchildren. They were Bartholomew.Howe, Phoebe Justic, Sarah Jameson, Caroline Lowry and Louise Lowry. The other half share of his residue was left to the Royal Society for the Prevention of Cruelty to Animals.

The estate of the deceased

3 The estate of the deceased has a value approximately of $2,411,264 and that includes the deceased's principal residence, which is a unit at Rose Bay, having a value of approximately $1 million. A number of deductions have to be made for tax for various years of $61,175, capital gains tax $113,555, commission $54,238.78 and the defendants’ costs of $43,458.64. If one takes those costs out the residuary estate it comes down to $1,131,838. There are also plaintiff's costs, if an order is made in favour of the plaintiff, which would reduce that, of $39,884.

Family history

4 The deceased and his wife, Roma, were married in 1943. They had two children, as I have mentioned, the plaintiff, born in December 1944 and the first defendant, Vance, born in September 1947. The plaintiff left school in 1963 and started to study art at the National Art School, probably a life choice that started to put her in conflict with the deceased, who wished her to be a nurse because he thought that was a proper profession for a lady. In 1964 she worked at David Jones and then also in that year she was married. She and her husband had four children, Bartholomew, born December 1964, Damien born May 1966, Phoebe born November 1971 and Millicent born January 1974. Unfortunately Damien died in 1970.

5 The plaintiff's husband was qualified as an accountant and they initially purchased a property in Elswick Street, Leichhardt. Things were travelling all right for a while but then unfortunately the plaintiff's husband was retrenched in 1974. He had a number of different jobs. She and her husband were in the situation where they had to sell up their home in Leichhardt and live in rented accommodation.

6 The first defendant had been married and he had a number of children, including Sarah, who was born in February 1977, Caroline, born in January 1980 and Louise born in December 1981.

7 After the accounting and a number of failures at jobs the plaintiff and her husband purchased a sandwich shop and business at Waitara. The deceased contributed $1000 to help his daughter at that time.

8 The plaintiff in the 1980s commenced some further studies to equip her to ultimately become a teacher. Unfortunately in 1987 she and her husband separated and the plaintiff moved to rented accommodation. She obtained a BA that year and obtained casual teaching positions. She and her husband were divorced in June 1990.

9 In December 1994 the deceased once again provided for the plaintiff, giving her $5,000. She graduated with Honours in Art History from Sydney University in 1999. In April 2004 the plaintiff's mother died and I will come back to the events surrounding that death.

10 The deceased made his will on 9 November 2004, as I have recounted. By 2007 the plaintiff started full-time teaching Art History and Theory at the Sydney Gallery School, Meadowbank.

11 The deceased died, as I have mentioned, on 7 June 2007 and probate was granted in October of that year to the defendant. The summons was filed in this matter on 11 July 2008 within the time limited by the Act.

Eligible persons

12 The plaintiff is an eligible person. In applications under the Family Provision Act (supra) the High Court in Singer v Berghouse (1984) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

“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 interrelationship 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 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 a 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 we no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors”.

13 I turn to consider the plaintiff's situation in life. The plaintiff is 65, single with no dependants. She works as a teacher, as I have indicated, and intends to continue working until 67 years. She lives in rented accommodation and has no assets, apart from some savings to which I will refer in a moment, and personal effects. She earns $1709 per fortnight net after all deductions. After paying rent of $300 per fortnight and other expenses for electricity, telephone and fares of $260 she is left with about $1149 per fortnight to pay for food, clothing and all the other necessaries in life. Her savings at present are $11,161.43 and her superannuation entitlement is $105,445.61. She has a credit card debt of about $3000. She has had from the deceased the minor provisions during his lifetime which I have referred to in setting out the family history.

14 The important concern in this case is the relationship between the plaintiff and the deceased. There were obviously some problems in the relationship between the plaintiff and the deceased. She did not see him or speak to him for an approximate period of two years following a discussion on 15 February 1997 and the last time that the plaintiff saw the deceased was at her mother's funeral in April 2002. That period up to the date of death, a period of five years, is a substantial break in the relationship between them.

15 Section 7 of the Family Provision Act provides that if a Court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

16 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word ‘ought’ in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...

It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that ‘many cases suggest that an applicant must show a moral claim ...’, he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s 7 of the present Act of the word ‘ought’ in replacement of the words from s 3 of the 1916 Act ‘as the Court thinks fit’ shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case.”

17 Meagher JA (NSWLR at 57) agreed with Priestley JA.

18 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in 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.” (Emphasis added)

19 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

20 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1

Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

21 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation.”

22 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

23 In Gorton v Parks (1989) 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

24 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs:

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relation. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ...”

25 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that ‘we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language’. They then say ‘the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

26 Young J also observed:

“In Fraser’s case, Kirby P at p 29 said that ‘I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning ‘moral duty.’ However, his Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘either by the observations of the majority in Singer or by the High Court’s reference, in the footnote to what Murphy J said earlier (p 27).’

Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.
Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, ‘the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficiently to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

27 The concerns expressed about any change in the law as a result of Singer v. Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 AT 25, 74-75 and 121.

28 In Walker v Walker (p27) Young J noted:

"I do not consider that there is any purpose in analysing whose fault it was that the state of non--communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, 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..."

29 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

"112. I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of ‘eligible person' in s6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.”

30 The difficulties in this case occur in a couple of areas. The first one in 1997 came when there was a discussion which the deceased thought was confrontational on 30 June 1997 between him and his daughter, the plaintiff, over her mother's treatment. Apparently, without telling the plaintiff, the deceased had admitted her mother to hospital and agreed to her having ECT treatment. That treatment, of course, can be very helpful but one would have thought that the family might have been involved and that is what was the cause of the plaintiff’s outburst on that occasion. They went to hospital to see her mother and at the end of the day the plaintiff suggested they cool down and think about it. She rang him up a few days later. He still insisted that she apologise to him for the way that she carried on and for being so loud and she tried to explain that she did not feel she needed to apologise. He hung up on her. That continued for two years until there came a further rapprochement. There was then the occasion that occurred at the funeral of the plaintiff's mother. She found out about it from her brother and went to the funeral, saw her father but he refused to speak to her and made it clear through her daughter that she was not to come to the wake. That was the last time she saw her father.

31 The plaintiff has, in her affidavit evidence, explained her responses to the two-page statement that the deceased left. They certainly give something of an explanation for what, on the face of the document, might seem to be rudeness or callousness on the plaintiff's part. It seems to me there is an adequate explanation but I think the truth of the matter is probably, as was suggested in cross-examination, that she is too like her father. They were so alike that they had to have their differences. Plainly I think the deceased was difficult or perhaps might be called conservative. His son had difficulties but he managed, with a degree of Christian forbearance, to look beyond it to deal with his father's difficulties.

32 Although there were these breaks and particularly a substantial one of five years at the end, I do not think that in the circumstances that they should have a substantial, although they may have some small, effect on the amplitude of some provision that might be made for her.

33 It is necessary, of course, to consider the situation in life of others who might have a claim on the bounty of the deceased. In this case the plaintiff makes it plain that she does not want to impinge upon the circumstances of her brother and the bequest that he obtained under the will.

34 Her brother has a unit which he purchased at North Ryde for the sum of $339,000 in 2001 and has a mortgage on it at present of some $32,000. He is 61 years of age and he earns, as a secondary school teacher, $55,000 per annum. His superannuation, given his length of service, is appropriate, in the order of $500,000. Other than a motor vehicle and some small credit card debts his financial situation is unremarkable.

35 The other class of people to be considered are, of course, the grandchildren of the deceased. The ones that have been named under the will are ones who have had a relationship which they have managed to keep on good terms with the deceased. It is obvious that the deceased was fond of them and he has provided for them in his will. I will deal with them individually.

36 Bartholomew Howe is 44 years old. He leaves in Queensland in rented accommodation for which he pays $150 per week. He receives a disability pension and manages to work 15 hours a week teaching English to overseas students. Last year he earned $17,994. He owes some $7,000 on a credit card which his mother, the plaintiff, has been paying off for him. He has a vehicle and just lives from week to week. His problem, which gives him his pension entitlement, no doubt, is that he suffers from chronic migraines, major depression, androgen deficiency, diabetes, haemo-chromatosis and Von Willebrands Disease. It is unlikely he would be able to work for more than 15 hours per week and plainly if he receives something from the estate he could pay his debts and perhaps look towards starting to acquire some property.

37 Phoebe Justic is 37 years old. She has been married for some 14 years and she lives at Kings Langley with three children aged from one to five years. She and her husband apparently have an investment house worth $280,000 which is subject to a mortgage of $155,000, and a home worth $470,000 subject to a mortgage of $464,000. They have credit card debts of $4000. When she was on unpaid maternity leave she was made redundant from her job at the Parramatta Rugby League Club. Her husband, who works for IBM, has a salary of $99,063 per annum. Their children are just starting school and there is a trust fund set up by the grandfather of some $36,000 for the children. Obviously she could use any amount that might come from the estate.

38 Sarah Jameson is one of the defendant's children. She was married in 2002 to Christopher and they have four children aged between five years and three months. She is a teacher and works at Barker College two days a week. She would prefer not to but it is necessary for her to do so. She earns about $15,000 per annum after tax, which mostly, probably always does, go in childcare for her children. Her husband earns $99,000 per annum in the building industry and she has a concern about his work. Their house is worth $620,000 which is subject to a mortgage of $470,000. They have substantial monthly commitments with respect to the children, meeting the mortgage repayments and other matters, which means they are just holding their own. Fortunately they have the funds for the schooling of the children which the deceased set up for them.

39 Louise Lowry is a self-employed personal trainer. She works in part-time employment at a North Shore gym and earns up to $1200 per week. Some weeks there is less and certainly her work is seasonal. She has a car which she uses to visit clients and carry on her occupation. At the moment she has some reasonably substantial debts, a loan of $18,000, a car loan of $24,000, and credit card debt of $8,000. She has rental of $1600 per month and the car loan repayments and other repayments would totally consume her income. She has no significant savings and plainly has a need to reduce her debts.

40 Caroline Helen Lowry is 29 years of age. She works with Fairfax Books, which is a division of Fairfax Media and recently has been appointed to a position of some seniority where she earns $90,000 per annum. However, her job there is somewhat precarious as her immediate two predecessors were retrenched and there are prospects that in fact the whole business might shut down. She has a car and contents which are not substantial. She has credit card debts of $2000 and savings of about $12,000. She lives in rented accommodation and pays $1344 per month. Plainly she would like to be able to pay her debts off or if she could contribute to maybe getting a house in due course.

41 Evidence has been given about the situation of the Royal Society for the Prevention of Cruelty to Animals. The Court has been fortunate to have details of the history of the organisation and the work that it does do. It is funded by donations and bequests and only receives very minimal amounts from the state. It depends very much for its work on bequests such as the present. In this case the only contact that there was between the deceased and the Society was in March 2003 when he attended at the Yagoona Centre for the purpose of adopting a maltese terrier called Samuel. That he did and that was the contact which he had.

Discussion

42 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In this respect the plaintiff put forward a number of claims. Firstly, she would like to buy a modest town house or unit in the Leichhardt area which with the expenses would come to $572,740. Secondly, because she is planning to retire at age 67 she would need an additional $61,250 to add to her superannuation to provide her with an extra $15,000 per annum which would enable her income to be supplemented without affecting her pension too much. She would like to buy a new motor vehicle for $36,750 and it is suggested she could receive some capital sum to provide for the vicissitudes in life, such as unexpected medical costs, in the sum of $200,000.

43 In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the Court’s approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

“67 When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.

68 In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]–[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.

69 White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.

70 It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.

71 There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order.”

44 In this case I think this is one of the cases given the amplitude of the estate where it is possible to make provision for a house for the plaintiff. It is a modest claim but it is, of course, subject to the other claims on the bounty of the deceased.

45 I turn to the question of the claim of the RSPCA and that claim should be seen in the light of the competing claims on the deceased's bounty by those to whom he left his estate.

46 There is no doubt that the RSPCA is a worthy charity but there was only minimal contact. In Vigolo v Bostin [2005] 221 CLR 191 Gleeson CJ had this to say at para [13]:

"Similarly, when courts come to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. Why is this so? The answer, again, lies in concepts of moral obligation."

47 In this case there was not no contact but it was only minimal contact and it seems to me, therefore, that any proper provision ought to substantially fall on the share of residue passing to the RSPCA.

48 So far as the other claims put forward by the plaintiff are concerned, I think it is proper for her to have some funds for a car and additional superannuation. Given her health and situation I do not think that her claim for $200,000 for a contingency fund is appropriate and, accordingly, in my view the appropriate amount of a legacy for the plaintiff is $700,000.

49 The orders that I propose to make are as follows and counsel might wish to make any suggestions:

1. The plaintiff receive a legacy out of the estate of the deceased in the sum of $700,000;
2. The burden of the legacy be charged, firstly, upon the half share of residue passing to the RSPCA, except for the sum of $20,000 and, secondly, on the other half share passing to the grandchildren of the deceased;
3. I order that the plaintiff's costs on the ordinary basis and the defendants’ costs on an indemnity basis be paid or retained out of the estate of the deceased;
4. I order that interest be payable on the legacy at the statutory rate if it is not paid within three months from today's date and on and from that date.
5. Exhibits can be returned.

50 I make these orders.

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