James v James

[2006] NSWSC 1151

CITATION:	James v James [2006] NSWSC 1151
HEARING DATE(S):	26/10/06
JUDGMENT DATE :	27 October 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	10/27/2006
DECISION:	Paragraph 44
CATCHWORDS:	Family Provision. Application by son when whole estate passed to second wife. Consideration of the circumstances of relationship between deceased and son. Order for a legacy.
PARTIES:	Marcus Rhys James v Rosaleen Marie James
FILE NUMBER(S):	SC 2983 of 2005
COUNSEL:	Mr G.A. Sirtes for plaintiff Mr R.D. Wilson for defendant
SOLICITORS:	Turner Freeman for plaintiff Mullane & Lindsay for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 27 OCTOBER 2006

2983/05 - MARCUS RHYS JAMES v ROSALEEN MARIE JAMES ESTATE OF HAROLD MARCUS RHYS JAMES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Harold Marcus Rhys James, who died on 17 November 2003 aged 77 years. The deceased was survived by his widow, who was his third wife, who is the defendant, his son, the plaintiff, and a daughter. The daughter and his first wife have been given notice and make no claim. His second wife and his other daughter, Bronwen, predeceased the testator.

Last will of the deceased

2 The deceased made his last will on 8 May 1996 under which he appointed the defendant executrix and left her the whole of his estate.

Assets of the deceased

3 The actual estate of the deceased was only $56,000. He owned jointly with the deceased his farming property ”Airlie” at Singleton, cash, stock and shares. His half interest in these assets were, at the date of death, $1,199,000. They are now worth more and I will return to their value later.

4 Costs have been incurred. The plaintiff's estimate of costs for a two day hearing was $57,300 and the defendant’s for a two day hearing was $54,000. In the event the matter only took less than a day and the costs should be less than that.

Family history

5 The deceased was born in 1926 and the defendant on 12 March 1941. The deceased had a daughter of his first marriage and that was Shani Rhys James born in 1953. The children from the second marriage were his daughter, Bronwen, who was born on 12 January 1957 and the plaintiff, who was born on 5 February 1959. When the plaintiff was a month old the deceased and his second wife, Barbara, separated. She, the plaintiff and Bronwen moved to New Zealand where they lived for the next 10 to 11 years.

6 In 1967 the deceased, who had been a medical practitioner, qualified as an ophthalmic surgeon and went on to develop that specialty for the rest of his life. Also in 1967 he travelled to New Zealand and saw the plaintiff and the plaintiff's mother. The deceased and the defendant met in 1968 and in 1969 the defendant commenced to work as the deceased's secretary in his medical practice. They were married on 24 March 1972 and shortly prior to that they purchased the home they were living in at Strathfield. In 1972 they purchased a property at Woy Woy for $11,000 and sold it in 1973 for $23,000. They subsequently purchased a property in McMahons Point which they also subsequently sold with some capital profit from that sale. In November 1973 they sold the Strathfield property and purchased a waterfront property at Gladesville for $68,000. In 1976 they purchased a property at Kurrajong, which they held until 1980 before selling it. This is the start of the deceased's and the defendant's country interests.

7 The plaintiff, in 1977, travelled to Australia for a short time where he worked in Melbourne and then he and his then de facto wife travelled and lived in the United Kingdom. There they had a daughter, Alice, who was born on 28 December 1978. In 1980 the deceased and the defendant purchased the property “Airlie” near Singleton for $115,000 borrowing $103,000 to purchase it. That loan was repaid in about six years.

8 In 1981 the plaintiff, his de facto wife and his daughter returned to live in New Zealand. There the plaintiff had occupation as a musician. It was at this stage in his life that he first had his contact with drug use, which has been a problem to him for many years. The plaintiff returned to Sydney in 1987 and worked as a driver with the State Bank until 1991. In this period he was free of drugs. He then started studying for a degree, a Bachelor of Arts at the University of New South Wales. He finally achieved that degree in 1995. He then started an honours year but it was in that honours year that he succumbed to drugs and started using again. He also was diagnosed as suffering from hepatitis C. which he found out at that time. The effect of this was that he could not complete his honours degree. There was also at this stage a visit by the deceased to the plaintiff at his home in Glebe in that year.

9 The deceased made his will on 8 May 1996, as I have mentioned, and in that year he had open heart surgery. The following year, in February 1997, he retired from practice and obviously, of course, the defendant ceased work as his medical secretary. In November that year when the plaintiff was living at The Rocks the deceased also visited the defendant and saw him at that time.

10 In 1998 the deceased and the defendant sold their home at Gladesville for $875,000. This was a substantial capital gain when one compares it to its purchase price. Over the following few years after moving to the property at Singleton they sold off various small blocks from the main property for about $114,000.

11 The deceased, as I have mentioned, died on 17 November 2003 and the summons was filed within time. The plaintiff plainly, of course, is an eligible person.

12 In applications under the Family Provision Act 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”.

The plaintiff's situation in life

13 The plaintiff is single, and has a 26-year-old daughter who is not dependent upon him. He lives in a Housing Commission in Judge Street, Woolloomooloo. He receives a disability pension which nets him $306 per fortnight after the deduction of rent for his premises. Plainly he only just survives on this amount. He had a HECS debt of $7,363. The plaintiff's health is not good. He has suffered depression since 1995. He has been addicted to opiates in the 1980s and also for a period between 1995 and 2004 he used heroin but by following methadone and buprenorphine programs he was able to get rid of the addiction. He also, as I have mentioned, suffered from hepatitis C, genetype 1, which is expected to reduce his life expectancy.

14 The plaintiff did not enjoy a close relationship with the deceased. Apart from as a very young child, the plaintiff only saw the deceased in person three times during his life. The first occasion was in 1967 when the deceased travelled to New Zealand to visit him when on holidays. The second occasion was in September 1995 and the third occasion in November 1997. However, the plaintiff and the deceased, in later years, did speak on the telephone and the deceased was in the habit of sending the plaintiff money for Christmas and birthdays, a sum of $200 on each occasion. The plaintiff did not, of course, contribute to the estate of the deceased.

15 It is also necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case the only person is the defendant, his widow. She is presently aged 65 years and lives on the farm known as “Airlie” at Singleton, where she runs cattle. She is presently being treated by Dr Griff Richards for arthritis in her left hand. This does not, however, prevent the defendant from running the farm.

16 I turn to consider the defendant's financial situation so far as assets are concerned. These are as follows:

2000 acre beef property “Airlie”
which has an agreed value of $1,887.500
Cash assets $ 839.218
Shares $ 111,446
Stock $ 35,000
Various vehicles $ 26,000
Superannuation $ 4,200
New Zealand assets approx $NZ 42,000

TOTAL $2,833,918

17 The defendant has two main sources of income. She has a War Widow’s pension of $530 pf which is $13,780 pa. She has interest on monies held in the bank and dividends of $32,301 according to her 2004 tax return. She has a small income from the farm but this varies from year to year and sometimes it is a loss. Her monthly expenses are $2,923.50, which annually is $35,082. It is possible that some of these might already be claimed as part of her farm income. She has things which she has to do at the property. These include maintenance to fences, erecting a shearing shed and other matters which will cost about $65,000. She wants to get some more stock when the drought breaks and wants to spend $50,000 on this. She does not have any debts.

18 It is plain that the deceased and the defendant had a happy marriage of some 31 years. She had modest savings when they married, which she put into the house at Woy Woy. By her efforts during the marriage, when she worked without receiving all her pay, she contributed to the build-up of their joint wealth, much of which came from the capital gain on the sale of the Gladesville property.

The relationship between the plaintiff and the deceased

19 There was only limited contact between the plaintiff and the deceased and this raises the question of the Court's approach to cases where this occurs. 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.”

20 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.”

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

22 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)

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

24 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 questions 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.”

25 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. 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.”

26 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, 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.”

27 At 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.”

28 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 relations. 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. ...”

29 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.”

30 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.”

31 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. In Walker v Walker (p27) Young J noted:

“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 showed 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….”

32 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 (p) 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."

33 The plaintiff had a difficult life as a child and was physically separated for most of his childhood. It was only in 1987 that the plaintiff returned to settle in New South Wales. He could have tried to make contact but did not do so until 1995, when he had meaningful contact with the deceased who made a surprise visit. Thereafter the plaintiff suffered from addiction and depression and I accept that he was not in a position to take any meaningful steps to continue contact.

34 After the 1999 visit there was correspondence which continued their relationship at a slow pace.

35 I do not think the deceased rejected his son and the son's slow progress in reconciliation was, no doubt, a result of the difficulties the plaintiff suffered from, being both his depression and drug addiction and this occurred up until 2004. I do not think that there was any rejection of the deceased by the plaintiff; he was just not capable of progressing the matter. This is an unfortunate and sad situation, not a blameworthy one.

36 It is necessary to see how the plaintiff says he has been left without adequate and proper provision for his maintenance, education and advancement in life. There are three areas advanced:

(1) the purchase of a one-bedroom unit in the city for a price of between $220,000-$320,000;
(2) a fund for contingencies of $120,000; and
(3) furniture of $20,000.

37 It is plain he needs furniture. All he has is second-hand furniture which was handed down or he picked up in the street. Obviously given his difficult history and his very limited means at the moment a fund for contingencies is necessary. He is only at the stage now where he is trying to come to grips with being able to get back to work. That will take him some time and precisely what he will do is not clear. He has an interest in writing and he is a person who has, in the past, obviously the ability to progress that sort of matter. How productive that will be in terms of income is a matter which I really cannot conclude.

38 The defendant concedes that some legacy in this regard would be appropriate. It is necessary to consider why the plaintiff says that he should be provided with a unit. The reason for this is that the area in which he lives in a Woolloomooloo is an area in which there is violence and drug use. He, not unnaturally, wants a change in his environment and suggests he should move to the inner city. That is probably a good attitude on his part and shows his awareness of how important his surroundings are. However, at the present stage he is secure in his Housing Commission accommodation provided he maintains the unit. He is likely to be able to stay there permanently. I do acknowledge that there will be difficulties for the plaintiff if he remains there because the waiting lists to move elsewhere are very substantial.

39 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 home. At[67] 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 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 plaintiff 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 J 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.”

40 In Mayfield's case the cash and securities passing by survivorship to the widow exceeded $5m and the estate passing under the will was $2.4m. Any provision ordered in that case would have no effect on the widow.

41 The present case is quite different. The defendant has cash reserves and shares of $992,000 and it is these funds which provide an income of $32,000. With her pension she has a small surplus of income over expenditure. For these purposes I also note that the farm is sometimes a drain on her resources and everyone knows the difficult time that farmers are having in the present long drought.

42 The defendant, given the extent of her expenses, obviously lives quite modestly. There is not any substantial expenditure there. Any provision in the order of $440,000, which is the upper limit of the claim of the plaintiff, will reduce her income from investment by a little under a half and will reduce her to living on capital. I do not see that she should be forced into a situation where she should give up her farming interests. It plainly has been a matter which has been central to her life with the deceased over their later years and it is something which she is anxious to continue.

43 As was said in Wheatley v Wheatley [2006] NSWCA 262 the poor state of the relationship between the plaintiff and the deceased operates to restrain amplitude in the provisions to be ordered.

44 In the circumstances of this case I do not think it is appropriate to provide funds for the plaintiff to have a debt-free house. Any order in this case will require an order designating some of the defendant’s property as notional estate. I am satisfied that the proper provision for the plaintiff is a legacy of $140,000. Section 27 of the Family Provision Act in these terms:

(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:
(a)the importance of not interfering with reasonable expectations in relation to property,
(b)the substantial justice and merits involved in making or refusing to make the order, and
(c)any other matter which it considers relevant in the circumstances.
(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:
(a)the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person,
(b)where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration,
(c)any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be,
(d)whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income, and
(e)any other matter which it considers relevant in the circumstances.

45 Plainly the deceased and the defendant planned to use their funds from Gladesville to support themselves in their retirement to the land. I do not think that a provision of this magnitude is too great an imposition on their expectation, and having regard to the matters I have already dealt with, I think the substantial justice and merits favour the making of an order.

46 The plaintiff recognises that the provision of a large sum of money is fraught with risks, namely, the temptation to succumb to drugs. In the past he has relapsed after many years of being free of drugs. He has only had 18 months free of drugs at the present time. Being aware of these risks the plaintiff agrees he will share the control of the funds with some responsible trustee. This aspect requires further investigation and I direct the parties to bring in short minutes including the usual costs order.

**********