Kay v Archbold - [2008] NSWSC 254

No judgment structure available for this case.

CITATION: Kay v Archbold [2008] NSWSC 254

HEARING DATE(S): 03/03/08, 04/03/08

JUDGMENT DATE :
28 March 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Counsel for the plaintiff to bring in short minutes of order in accordance with reasons.

CATCHWORDS: SUCCESSION – family provision and maintenance – whether testatrix made adequate provision for applicant – bulk of estate left to son in will – significant gifts to son inter vivos – applicant an adult daughter with multiple sclerosis – competing claim of adult son with Hepatitis C. - SUCCESSION – family provision and maintenance – practice, procedure and orders – cost-capping application – costs increased by defendant executor’s failure to place all relevant evidence before the court – application not determined prior to the hearing.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW)

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Moore v Moore [2004] NSWSC 587
Jvancich v Kennedy (No 2) [2004] NSWCA 397
Sherbourne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268
Dijkhuijs v Barclay (1988) 13 NSWLR 639
In the Estate of Guthrie (1983) 32 SASR 86
Horne v Horne [2001] NSWSC 50
Dalton v Paull (No. 2) [2007] NSWSC 803
Dinnen v Terrill [2007] NSWSC 1405
Palmer v Dolman [2005] NSWCA 361
Wheatley v Wheatley [2006] NSWCA 262
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Walker v Walker (Supreme Court of New South Wales, Young J, 17 May 1996, unreported)

PARTIES: Jacqueline Kay
v
Kenneth Stanley Keith Archbold

FILE NUMBER(S): SC 5395/06

COUNSEL: Plaintiff: R Colquhoun
Defendant: J Needham SC, S K Hill

SOLICITORS: Plaintiff: Fitzpatrick Solicitors
Defendant: Larcombe Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
FPA RUNNING LIST

WHITE J

Friday, 28 March 2008

5395/06 Jacqueline Kay v Kenneth Stanley Keith Archbold – Estate of the Late Elaine Fredericka Archbold

JUDGMENT

1 HIS HONOUR: This is an application under s 7 of the Family Provision Act 1982 (NSW) for an order that provision be made for the plaintiff’s maintenance and advancement in life out of the estate of Elaine Fredericka Archbold, late of Grandview Parade, Mona Vale, New South Wales.

2 Elaine Archbold died on 3 May 2006 aged 77. She had survived her husband who died on 18 January 1993. There were three children of the marriage: Mrs Lynne Hosking born in 1952, the plaintiff born in 1955, and the defendant born in 1965.

3 Probate of the deceased’s will was granted on 27 September 2006. The Inventory of Property disclosed assets of $906,110. The principal assets consisted of the house at Grandview Parade, Mona Vale and its contents valued at $638,500, and a unit in Gladstone Street, Newport valued at $190,000. These were the subject of specific gifts in the deceased’s will. There were three rings also the subject of specific gifts in the will valued at $7,210. There were other assets the subject of a residuary gift comprising bank accounts, cash, a motor vehicle, shares, units, and debts due to the deceased – having a total value of $70,400.

4 The deceased’s last will was made on 21 October 2004. She appointed her son, the defendant, as executor of her will. She left the house at Grandview Parade, Mona Vale and its contents to the defendant. She left the unit at Newport to the plaintiff and Mrs Hosking as tenants-in-common in equal shares. She divided her rings between her daughters and gave the defendant her father’s engagement ring. She left the residue of the estate to her three children in equal shares. The deceased gave her reasons for leaving the Mona Vale property to the defendant as follows:

Because he resided with me after my husband’s death for a period of 5 years and has constantly assisted me both prior to my husband’s death and since, helping me in the day-to-day management of my affairs and maintaining the house and grounds at Grandview Parade, Mona Vale.

5 The will included a clause providing that the gifts of the unit at Gladstone Street, Newport and residue to her daughters was subject to a condition precedent that the daughters separately release and discharge her estate and the defendant against all claims either daughter may have in respect of the will, including any claims under the Family Provision Act, failing which that daughter’s entitlement under the will should pass to that daughter’s children. Mrs Hosking provided the release and made no claim on the estate. The defendant acknowledged that the clause was invalid and, in any event, ineffective. The plaintiff’s children acknowledged that they were aware of the clause and did not wish to take part in the proceedings.

6 The deceased was estranged from the plaintiff. From 1995 until the deceased’s death, the plaintiff had only minimal contact with her mother. Neither the plaintiff nor Mrs Hosking saw their mother in the weeks she was in hospital before her death.

7 In 1982, the plaintiff was diagnosed with multiple sclerosis. She is now unable to walk and uses a wheelchair full-time. She currently leads an active life and spends considerable but varying periods of time doing voluntary work for the Access Dinghy Foundation, a charitable foundation supporting the provision of modified sailing dinghies for people with disabilities. She has significant current needs which are not capable of being met from her present financial resources. As time passes, she will need increasing levels of care until full-time care is required.

8 The defendant was given substantial sums of money and property by the deceased during her lifetime. He is the owner of an unencumbered property at Curl Curl which has an agreed value of $1,200,000. He also has cash on term deposit of $230,000 and superannuation of $38,000. He has an adult son who resides in the Curl Curl property. He also has an infant son who is three years of age. Since 1990, he has been in a relationship with the child’s mother, Ms Caroline Lang. They see each other once or twice a day and spend about four nights per week at each other’s home. The defendant is 42. He suffers various medical conditions which inhibit his capacity to work. His weekly outgoings currently exceed his income such that he has to draw on capital.

9 Mrs Hosking is in comfortable financial circumstances. She suffers from psoriatic arthritis, which is a progressively debilitating chronic autoimmune disease.

10 The plaintiff is an eligible person to apply for provision under the Act. The defendant concedes that the provision made in favour of the plaintiff is inadequate for her proper maintenance, education and advancement in life (s 9(2)(b)). The question is, having regard to the present circumstances, what provision ought to be made out of the estate for the maintenance of the plaintiff (s 7). Section 9(3) provides:

“ 9 Provisions affecting Court’s powers under secs 7 and 8

...

(3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration:

(a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to:

(i) the acquisition, conservation or improvement of property of the deceased person, or

(ii) the welfare of the deceased person, including a contribution as a homemaker,

(b) the character and conduct of the eligible person before and after the death of the deceased person,

(c) circumstances existing before and after the death of the deceased person, and

(d) any other matter which it considers relevant in the circumstances.

11 In Singer v Berghouse (1994) 181 CLR 201 at 208-210, Mason CJ, Deane and McHugh JJ said of ss 7 and 9 of the Family Provision Act:

“ It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.

...

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 determination of the first stage in the twostage 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.

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.

12 There is no issue that the plaintiff satisfies the first stage of the two-stage process.

13 In determining what constitutes proper maintenance of the plaintiff, the matters of particular significance in this case are:

a) the plaintiff’s financial position, and the nature and quantification of her needs;

b) the relationship between the plaintiff and the deceased, and whether their estrangement was due to the character or conduct of the plaintiff which should reduce the level of what would otherwise be a proper provision for her maintenance;

c) the care provided by the defendant to his mother and his contribution to the improvement of the Mona Vale property;

d) the provision made in the deceased’s lifetime to support the defendant;

e) the defendant’s current and likely future financial resources to meet his needs and the needs of those with legitimate claims on him; and

Distributable Estate

14 There is a preliminary question of what should be taken to be the size of the distributable estate, having regard to the legal costs of the parties. The defendant contended that the costs the plaintiff should recover from the estate should be capped at $50,000.

15 After payment of debts, including payment of $43,000 for the defendant’s costs of these proceedings, the assets remaining in the estate and their current values are as follows:

1. 2 Grandview Parade, Mona Vale, NSW being the

whole of Volume 6815 Folio 139 – median of

appraisal $720,000.00

2. Unit 1, 58 Gladstone Street, Newport being the

whole of Folio Identifier 1/SP40444 $190,000.00

3. Greater Building Society $ 6,000.00

4. Contents of 2 Grandview Parade,

Mona Vale $ 8,500.00

5. 3 Gold Rings $ 1,265.00

Engagement ring with one stone (referred

to in Clause 5(i) of the Will) $ 3,050.00

Engagement ring with two stones (referred

to in Clause 5(ii) of the Will)

$ 2,895.00

TOTAL

$931,710.00

”

16 According to the defendant there remains an estimated liability of $28,200 for the defendant’s legal costs for which he claims indemnity from the estate (that is, the defendant’s total costs of the proceedings are $71,200). Tax is estimated at $1,325.

17 The plaintiff’s solicitor estimates her costs and disbursements to be $95,000. If this amount is wholly recovered from the estate, the estate’s liabilities would total $124,525. As I understand the defendant’s affidavit, there is currently $6,000 held in the Greater Building Society which forms the remainder of the residue of the estate. The balance of $118,525 would be borne rateably between the defendant in respect of his share of the estate and the plaintiff and Mrs Hosking in respect of their share. (It was common ground that for this purpose jewellery should be ignored. No-one contends that the rings should be sold to meet costs orders.) According to the defendant, there is approximately $6,000 of net rent which has been collected in respect of the Newport unit which is held by the managing agent. I take it that that sum is not included in the figures extracted at para [15] above. Accordingly, leaving aside the rings, the liabilities of $118,525 would be apportioned rateably between the defendant in respect of his share of the estate valued at $728,500 and the share of the plaintiff and Mrs Hosking valued at $196,000. The defendant’s share of the cost burden would be $93,397. The share of the liabilities (principally for costs) to be borne by the plaintiff and Mrs Hosking would be $12,564 each. Again leaving aside the rings, the available estate in total would be $805,975. Subject to whatever order for provision is made out of the estate, the defendant would receive $635,103 or property to that value. Each of the plaintiff and Mrs Hosking would receive $85,436. The actual receipts would be less given the costs of realising the assets to be distributed.

18 The defendant says that the plaintiff’s costs of $95,000 are excessive. Reference was made to Moore v Moore [2004] NSWSC 587 at [43]-[47] where Young CJ in Eq said (at [43]):

43 As it does not matter about the quantum of the costs in this particular matter, I should make some general observations about costs in

applications. I think the position has now been reached where judges will not allow more than $35,000 in costs to any party in this type of case unless there is some special justification.

19 That decision was not endorsed by the Court of Appeal in Jvancich v Kennedy (No 2) [2004] NSWCA 397. Giles JA, with whom Handley and McColl JJA agreed said (at [6]):

6 It has not been the practice in Australia for the Court to fix the amount of costs. Even if the Court were to do so, I respectfully do not think that a general ceiling can be stated, even one subject to exception where there is ‘special justification’. Reasonableness of costs will always fall to be considered at the time of assessment. It may or may not be appropriate, in a particular case, for the Court to address a fixed or maximum amount in the costs order it makes, although normally the Court will not be in a position to know whether or not costs to or in excess of that amount were reasonably incurred. In the present case, other than by reference to the observation of Young CJ in Eq and to the modesty of the legacy ultimately obtained by the respondent, the appellant did not suggest why it might be appropriate to limit the costs; nor are we in a position to limit the costs in an informed manner. In my opinion, a ceiling should not be imposed by the order now made. Proportionality will be a matter for the assessor so far as it may properly be taken into account.

20 In Sherbourne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268, Palmer J held (at [42] and [44]) that whilst there might be exceptional cases in which a court could exercise its powers under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) to cap a successful party’s costs, such a case would be exceptional because the Court would have to make an informed decision to assess the reasonableness of the costs incurred with the attendant higher risk of greater cost and delay than would attend an assessment of costs by a costs assessor in accordance with the Legal Profession Act 2004 (NSW). His Honour held (at [31]) that r 42.4 Uniform Civil Procedure Rules 2005 (NSW) could not be used at the time a final costs order came to be made. His Honour said of that rule (at [26]):

26 I conclude that UCPR 42.4 is intended as a means whereby the Court may, if the need arises, curb the tendency of one or all parties to engage in disproportionate expenditure on legal costs by making it clear, at an early stage of the proceedings, that beyond a certain limit the parties will have to bear their own costs – win or lose.

21 These proceedings were commenced on 20 October 2006. By notice of motion filed on 27 November 2007, the defendant sought an order that the maximum costs that may be recovered by the plaintiff be capped at $35,000. That motion could not be heard before the hearing which commenced on 3 March 2008. The defendant said that the reason the application to cap costs was not made until 27 November 2007 was because it was not until then that the defendant knew the quantum of costs the plaintiff was incurring. The defendant’s solicitors inquired about those costs on 29 September 2007.

22 I declined to hear the defendant’s notice of motion as a preliminary issue in advance of embarking upon the hearing of the main case. By the time the matter came on for hearing, an order capping costs, if it could have been properly made, would not have had a prophylactic effect. It was too late. It was preferable to get on with the hearing. In any event, the notice of motion could not properly be disposed of without traversing much of the materials which would be relied upon in the hearing of the main case.

23 Having had the benefit of reading all of the affidavits relied upon in the proceedings (not only those relevant only to the notice of motion), and having had the benefit of listening to the defendant’s cross-examination, I would not be prepared to make a costs-capping order. There is no material discrepancy between the costs incurred by each party once account is taken of the costs incurred by the plaintiff in obtaining four experts’ reports. These concerned her medical condition and her needs. Leave was obtained to rely upon such experts’ reports and they were all highly material.

24 A further reason why a costs-capping order would not be appropriate, even if it were open to make such an order at this late stage, is that the plaintiff’s costs have been materially increased by the issue of numerous subpoenas and attendances on the return of subpoenas. The subpoenas were issued in order for the plaintiff to obtain information relevant to the financial position of the defendant and of his partner, Ms Lang.

25 In his original affidavits sworn in March 2007, the defendant gave some information as to his past income. He disclosed that he was the owner of a property at Curl Curl which he said he had bought from his mother for $285,000 in 1995 (which was not correct). He deposed to some of his expenses, namely child support for his younger son. He deposed that he had total income of about $580 per week gross. He deposed to being able to work only 8-14 hours per week since 2005 due to ill health. He swore to what income he was then receiving. He also disclosed that the deceased entered into a “prescribed transaction” on 16 July 2004 in which she made a gift to him of $317,000. He deposed that he returned $30,000 of that money to his mother on 19 July 2005. This was not a complete description of his current financial position.

26 The plaintiff’s solicitors complained that the defendant had not sworn an affidavit setting out his financial position, and his failure to disclose his financial position had required them to issue many subpoenas and peruse a vast volume of documents to ascertain his true financial position. The position taken by the defendant’s solicitor was that it was the plaintiff who was taking forensically unnecessary steps. On 12 October 2007, they said:

It is quite apparent from the evidence served that the Defendant is not putting his

financial

position in issue – he is happy to concede that the Plaintiff’s financial needs are greater than the defendant’s.

27 They denied that the financial position of Ms Lang was relevant and asserted that the plaintiff had been fully appraised of her asset and income position.

28 However, the defendant maintains that he has needs which should be met from the estate. His solicitors wrote on 17 October 2007:

“ Our client concedes that he is, financially, in a better position than the plaintiff, not that he has no current or future needs himself, such as those relating to his health.

Accordingly

in our view there is no need for the defendant to disclose further his financial position or even less Caroline Lang to make any disclosure as to her financial position.

29 It was not enough for the defendant to say that he conceded his financial position to be better than that of the plaintiff. An issue in these proceedings is whether his current and future needs can be met from his financial resources, or those which are likely to be available to him. To decide that question, it is necessary to know what those resources are. As Kirby P said in Dijkhuijs v Barclay (1988) 13 NSWLR 639 at 654:

It is the duty of an executor to place all relevant evidence before the court. If there is evidence in the possession of the executor relevant, whether positively or negatively, to the ‘factors which warrant the making of the application’ under the Act, I see nothing in the procedure envisaged by s 9(1) of the Act which will relieve the executor of the duty to provide that evidence to the court. The duty of the court to have regard to ‘all the circumstances’ of the case signifies the potential width of the court's inquiry. ... I believe that the terms of the subsection reinforce the duty of the executor to ‘place before the court … evidence which might have any bearing on any issues … raised by the applicant's evidence or which might arise at the hearing’: cf

(1958) 59 SR (NSW) 219 at 226; 76 WN (NSW) 288 at 293

30 Given the position taken by the defendant as to his needs, he, or his legal advisors, were quite wrong in the position adopted.

31 The defendant belatedly performed part of his duty by swearing an affidavit on 31 January 2008 deposing to his assets and liabilities. He did not make any further disclosure as to the extent of gifts made to him by the deceased during her lifetime. Contrary to his counsel’s submissions, those gifts are relevant (e.g. In the Estate of Guthrie (1983) 32 SASR 86 at 96). They are dealt with later in these reasons. Evidence as to those gifts and as to the consideration provided by the defendant for the transfer by the deceased to him of a property at Curl Curl in 1995 was only elicited in cross-examination with the use of documents produced on subpoena.

32 It is unnecessary to consider the extent of the Court’s power to make cost-capping orders. Such orders have from time to time been made at the conclusion of the hearing (e.g. Horne v Horne [2001] NSWSC 50; Dalton v Paull (No. 2) [2007] NSWSC 803; Dinnen v Terrill [2007] NSWSC 1405). I would dismiss the application in the defendant’s notice of motion of 27 November 2005 on its merits. In due course I will dismiss that notice of motion and hear argument as to whether the defendant should be indemnified from the estate in respect of his liability to pay the plaintiff’s costs of the motion.

33 I proceed on the basis that subject to any offers which have been made to compromise the plaintiff’s claim, the plaintiff will be entitled to recover her costs, assessed on a party/party basis, from the estate and the defendant will be entitled to recover his costs from the estate on the indemnity basis. I therefore assume that the distributable estate will be roughly that indicated earlier in para [17]. In doing so, I am not pre-empting any argument either party might wish to make about costs.

Plaintiff’s Financial Position and Needs

34 The plaintiff owns a two-bedroom ground floor unit (or villa) at Belfield. It has a current value of $340,000. She values the contents at $10,000. She has superannuation of $10,876, savings of $6,000, and shares worth about $4,500. Her daughter owes her $23,550. This is a loan with no definite arrangements for repayment. In total her assets are worth about $395,000.

35 She depends upon a disability pension and a mobility allowance of $614 per fortnight. This is fully expended in paying her living expenses. Her living expenses include expenses for having two visits per week from Homecare NSW, the cost of respite care for four weeks a year (at $30 per day), wheelchair maintenance, TENS machine maintenance, and maintenance of a hydrotherapy pool attached to her villa. She has no significant debts.

36 Her home has been adapted for wheelchair use except for the kitchen. Modifications are needed to the kitchen to lower the benches and to provide space under the sink for her wheelchair so that she can do the washing-up. The cost of this has been assessed at $7,000.

37 She has the use of a car which belongs to the Access Dinghy Foundation and which is fitted for a wheelchair and has a hoist to put the wheelchair on the roof. She is able to drive the car with hand controls, but fatigue limits her use of the car. The foundation pays the running expenses of the car. The car is almost entirely used in connection with her work for that charity. She does her shopping through the internet.

38 She receives cleaning services of two hours per week through Homecare NSW at a cost of $30 per hour. She has private hospital cover provided by Access Sailing Pty Ltd, apparently a company associated with the Access Dinghy Foundation.

39 She lives frugally within her means.

40 The plaintiff has very severe impairment from multiple sclerosis. A rehabilitation specialist, Dr Stephen Buckley, opined on 5 April 2007 that she needs more care than she is presently receiving, and that she is on the borderline of being able to remain at home living alone.

41 As noted above, the plaintiff was diagnosed with MS in 1982. In either 1992 or 1995, she was diagnosed with secondary progressive MS, meaning that her condition would be one of slow decline with no remission. The disease progressively affects her central nervous system. The timing of the onset of symptoms for persons suffering the disease is widely variable. But progression appears inevitable.

42 The plaintiff married in 1977 and has two children: a daughter now aged 29 and a son, 27. The plaintiff’s daughter used to live next door to the plaintiff, but she has recently sold the property and will be moving to Adelaide shortly.

43 Every few years from 1982 the plaintiff suffered exacerbations of the disease. In June 1995, she was admitted to hospital for five days for treatment. At that time, her marriage had broken down. She was divorced in 1996.

44 She is confined to a wheelchair. She is progressively losing hand function and sensation in her palm and fingers. Dr Walker, a consultant neurologist, saw the plaintiff in 1996, 2004 and 2006. He reported in October 2006 as follows:

Ms Kay has now had multiple sclerosis for 24 years. She has paraplegia but good function of her arms and therefore she remains independent at the present time with a fairly modest degree of help and some modifications to her environment. At the present time Ms Kay would benefit from more extensive kitchen modifications so that she could do washing herself. Clearly computer access to the Internet is important in her independence and upgrades would be required from time to time. She would also benefit from a hoist to help her into her hydrotherapy pool and she would probably not unreasonably benefit from an extra 2 hours a week to more regularly clean and do odd tasks. Ms Kay will also need upgrading of her motor vehicle with hand controls. There is no specific medical treatment that is necessary at this stage, though in the future it is possible that she may need to go onto some medications to help with maintaining bladder control.

The real issue is at what stage Ms Kay will start to lose the function of her arms and/or vision and therefore become dependent upon others for activities of daily living and transportation. It is difficult to accurately access

when this might occur, though certainly in all reasonable probability it will be by the time she is aged 60. Initially it would be assumed that care could be provided within her domestic situation in the form of a great deal more hours spent on a daily basis. Ultimately as is virtually always the case this becomes to onerous and nursing home placement is necessary and this may for instance occur by the age of 65.

Obviously in a disease which is so variable there is always the chance of a sudden and rapid progression which could occur at anytime.

45 The plaintiff began using the wheelchair in 1997. She now depends on it for mobility. She cannot walk. She is able to stand momentarily to transfer herself from her wheelchair to a car, or to a toilet, bed or chair for her shower. She has chronic pain of varying intensity. She suffers fatigue. Whilst maintaining an active involvement in charitable activities for the Access Dinghy Foundation and another charity providing sailing dinghies for disabled people, Sailability, she has to moderate her activities to provide extensive periods for rest, exercise and personal care. Her own description of her current needs was understated.

46 The plaintiff continues to do a considerable amount of voluntary work for the Access Dinghy Foundation and Sailability. She was awarded an OAM in 1996 for her services to those organisations. She travels regularly to conferences, including conferences interstate, and she travels overseas at least annually. She helps maintain a website for Access Dinghy Foundation. This, and the reports from the doctors, nurse and occupational therapist tendered by the plaintiff, suggest that she is a person of considerable stoicism who is determined to retain an active life despite her disability. That was my impression of her in the witness box. In itself, that is not a matter justifying an increased provision from the deceased’s estate. It is relevant partly because the defendant submitted that the medical evidence and the evidence of the nurse and the occupational therapist as to the plaintiff’s current needs should be discounted because it was not advanced by the plaintiff herself. I do not agree with that submission. It is also relevant to assessing the importance to the plaintiff of her being able, so long as possible, to maintain an independent lifestyle after her present condition deteriorates without being compelled to face admission to a nursing home.

47 The plaintiff’s current needs could be accommodated from the share of the estate she will obtain under the will or a modest further provision. On 5 April 2007, Dr Buckley reported that in his opinion the plaintiff’s current requirements for care were as follows:

Vacation care:

Full time travelling companion.

Medical care:

General Practitioner – twelve visits annually

Neurologist – two visits annually

Physiotherapy:

Twelve treatments annually

Occupational Therapy:

Four hours annually

House:

Fully wheelchair accessible house which has been modified to meet Ms Kay’s special needs, including airconditioning.

Handyman:

Three hours a week.

Housekeeper:

Five hours a week.

Transport:

Vehicle with automatic transmission and power steering, electric windows, roof-based wheelchair hoist, spinner knob, cruise control and appropriate hand controls for the person with limited leg control.

48 I accept that the plaintiff currently needs at least that much care. In addition, there is an immediate need for modification of her kitchen. She also has an immediate need for a hoist for her hydrotherapy pool.

49 The plaintiff’s main needs will arise when (not if) her present condition deteriorates by her losing her ability to transfer herself independently, or by losing bladder or bowel control.

50 An experienced nurse, Ms Jane van Groningen prepared a report in December 2006. She set out four common stages of progression of the disease and gave her opinion as to the plaintiff’s likely need for personal care and domestic assistance with each stage. Stage 1 was described as her current need.

51 Ms van Groningen described stage 2 as where there is a loss of ability to transfer independently and independent community mobility. Stage 3 is where there is a loss of bowel and bladder function. Stage 4 is where total personal care and domestic care are required.

52 Ms van Groningen opined in December 2006 that the plaintiff had a then current need for seven hours per week of attendant care assistance for fifty weeks per year, seven hours per week of light domestic care assistance for fifty weeks per year, seven hours of attendant care assistance per week for exercise strengthening programs for fifty weeks per year, and an allowance for 24 hour attendant care for two weeks per year in the case of illness. The cost of such care was quantified at $46,213 per annum.

53 In a supplementary report of 5 April 2007, Dr Buckley doubted that this was an accurate description of the plaintiff’s current needs given that she is presently driving, shopping, and, to a certain extent, is independent at home, with the current level of care of two hours per week. He said:

“ I have indicated that I believe she requires further assistance, which would be three hours a week of outdoor assistance, and five hours a week of indoor domestic assistance, to bring her qualify [sic] of life to a reasonable level.

I would have difficulty recommending the level of care advised by Ms Van Groningen for the present circumstances.

Timing of the possibility of partial independence levels based on Ms Van Groningen’s proposals is difficult because it is more likely than not, in my opinion, that due to the anatomy of multiple sclerosis and brain and spinal cord function, that the alteration to a state where there is a loss of ability to transfer independently, and to have independent community mobility, is likely to be associated at a similar time, with loss of bladder and/or bowel function, and indeed a development of a circumstance where total personal care and domestic care are required.

I think it would be reasonable to assume, therefore, that Ms Kay will require the level of care proposed by Ms Van Groningen as her current needs, by the time five years have elapsed from the present time, and that full time care will be required by the time ten years have elapsed.

54 At stages 2 and 3, Ms van Groningen opined that the plaintiff would need two hours of attendant care and domestic assistance each morning and evening together with three hours of attendant care per day for community access assistance. In addition, she would require “sleepover care” each night to assist with toileting and other emergency care. There would be a further need for half an hour per day of attendant care for passive exercise program or hydrotherapy and the provision of a Vital Call system for emergency assistance. Essentially, the same level of care would be required at stage 3 with the addition of two hours per month of registered nursing care. The estimated cost of this care was $153,721 per year at stage 2 and $154,753 per year at stage 3. At stage 4 where total personal and domestic care was required, the cost paradoxically is lower. The cost of such a carer, together with charges for a registered nurse for two hours per month, was estimated at $132,782 per year.

55 As appears from Dr Walker’s report quoted earlier in these reasons, it is reasonable to assume that by the time the plaintiff is age 60 she will be dependent on others for activities of daily living and transportation and that care could be provided within her domestic situation in the form of a great deal more hours being spent on a daily basis. In his experience, in time this becomes too onerous and nursing home placement is necessary.

56 It is important to note that this decline is not likely to be accompanied by loss of cognitive function. Dr Buckley said that a loss of cognitive function is no more than a possibility.

57 The plaintiff is repelled at the prospect of transfer to a nursing home. The evidence is that the average age of residents in a nursing home is 81. For an otherwise active and vital person in her 50s or 60s, such a prospect is understandably repugnant if home care were available.

58 The defendant’s position is that the estate is inadequate to fund full-time care for the plaintiff, or the care indicated in Ms van Groningen’s report as stages 2 or 3, that is, the care required once the plaintiff loses her ability to transfer herself independently and to have independent mobility in the community, or once she loses bowel and bladder function. According to the defendant, when that point is reached the plaintiff should enter a nursing home. Although there is no evidence to this effect, the defendant says that when that point arises, the plaintiff, with her current financial resources, could be admitted to a nursing home and that her home at Belfield could be used to raise an accommodation bond. Otherwise, as I understood his position (although there was no evidence about this), the defendant says she could be looked after at the public expense. In effect, the defendant submits that his claim on the estate is such that the estate should not be expended at $150,000 per year to provide the plaintiff with intensive care at her home for at most a few years.

59 The defendant submits that in lieu of the provision made for the plaintiff in the will, the plaintiff should receive a legacy of $180,000 to $200,000 and that legacy should be funded by transferring the Newport unit to her absolutely. In other words, the defendant submits that the provision to be made for the plaintiff under the Act should come from Mrs Hosking’s share of the estate. The defendant submits that the costings in Ms van Groningen’s report and in a report of an occupational therapist, Ms Blanch, were excessive, but in any event, were based upon a flawed assumption that the plaintiff would be able to be cared for in her home.

60 I do not accept that a provision of $180,000 to $200,000 from the estate would be an adequate provision to maintain the plaintiff up to the time she loses her ability to transfer herself independently or to be mobile in the community, or loses bowel and bladder function. Assuming that the level of care Ms van Groningen described as representing stage 1, or current need, was a level of care which would not be required for about four years, nonetheless, it is clear from Dr Buckley’s report that at least that level of care could be required for a further five years. Dr Buckley considered that to be a reasonable assumption. The current cost of such care comes to about $46,213 per year.

61 Moreover, during the next four years, the plaintiff is likely to need more than an additional six hours of attendant and domestic care per week as Dr Buckley opined in his report. It was not clear from his report whether Dr Buckley considered that the plaintiff’s requirement for this period would be a requirement for care of eight hours per week in total, or eight hours in addition to the care she already has. What is clear is that at the time of Dr Buckley’s report, and at the time of Ms van Groningen’s report, the plaintiff’s daughter was living next door and was able to run errands and provide assistance as requested. This included doing such things as putting in and taking out the plaintiff’s garbage bins, and helping her manage and store large shopping. That assistance will not be available.

62 Provision of an extra six hours of care per week would cost about $9,360 per year. But in my view, that would be an inadequate sum to allow for care for the next four years until the plaintiff needed about 21 hours of care per week.

63 An adequate provision for maintenance up to the time the plaintiff reached stage 2 or stage 3 would also allow for contingencies, such as the contingency that the plaintiff may need the level of care described by Ms van Groningen as stage 1 care earlier than in four years time. There might be a graduated progression of needed care prior to the time the plaintiff loses hand function and so is unable to transfer herself, or loses bowel or bladder function.

64 The plaintiff also has needs for equipment and home modification and she will have needs for items such as wheelchairs and a breath-controlled sewing machine, even if it is to be assumed that upon reaching stage 2 or stage 3 she should be admitted to a nursing home rather than having intensive personal care at her own home. Kitchen modifications are immediately required at a cost of about $7,000. The plaintiff needs a hoist for her hydrotherapy pool estimated to cost $7,500. Upgrading of the air-conditioning is required and the cost is estimated to be $2,705. The plaintiff has two wheelchairs, one folding and one fixed. Her current folding wheelchair is more than ten years old. They will need to be replaced in due course. As her disease progresses she will also need a wheelchair with a power assist mechanism or one which is fully powered with customised control. A lightweight manual folding frame wheelchair costs $6,500; a fixed wheelchair costs the same. A power-assisted mechanism for the manual wheelchair costs $9,000. A powered wheelchair costs $18,000. A provision for such replacement wheelchairs is necessary. Even if, as the defendant contends, the plaintiff should not be given provision which would meet the cost of intensive care in her home, she will still need such replacement and powered wheelchairs in a nursing home.

65 At the moment, the plaintiff’s transport costs are provided through Access Dinghy Foundation as she provides voluntary work for the Foundation and uses a modified car for that work. There is no security in that arrangement. Ms Blanch reported:

“ It is necessary for Jackie to maintain her ability to perform a pivot transfer to maintain her independence with accessing the community via her car.

It is necessary for Jackie to maintain her current level of hand function and upper limb sensation to drive her car using hand controls. It is also necessary that her vision does not deteriorate and impact on her ability to drive. While it is not possible to determine the rate of Jackie’s deterioration for the purpose of this report, I have not included the replacement costs for a roof top car hoist (2050) or hand controls (1800). As I have made the assumption that by the time the current equipment requires replacement in two or three years, it may be appropriate for Jackie to purchase a vehicle suitable for modification to transport a power chair and for a carer drive.

As Jackie’s functional ability deteriorates and she loses the ability to transfer but is still able to self-propel a lightweight wheelchair, she has the option of being assisted by a carer to use a personal car hoist system (installed into her sedan) and to be transferred from her wheelchair into the car seat. A carer would then manage her wheelchair into the boot. This would be a stage where her care needs would increase significantly to cover all community transport.

At a stage where Jackie is unable to self-propel a manual wheelchair due to loss of sensation, strength and motor control, she may for a period benefit from a power-assisted wheelchair and then progress to a fully powered wheelchair. At this stage she will need to travel in her wheelchair and hence will require a wheelchair accessible taxicab or a private vehicle that has been modified to allow her to enter and exit in the wheelchair. It is not expected that Jackie will be a self-driver when she uses a power wheelchair, as her upper limb function will be too poor.

For the stage where Jackie is a power wheelchair user I suggest the purchase of a smaller two-person (driver/carer and wheelchair user) vehicle, as this may be a practical city vehicle suited to Jackie’s lifestyle and commitments. It would be suitable for the current garaging facilities and is rear entry. A conversion by Freedom Motors of a Citroen Berlingo or Renault Kangoo, including a lowered floor, manual ramp, restraints for wheelchair and passenger. This style of conversion is unsuitable for use with a tow bar and trailer which will mean that to travel away from home additional personal care items such as a portable hoist, folding manual back up wheelchair and a shower chair will need to be transported by an alternative carrier (ie. courier service).

The alternative is to purchase a van style vehicle such as a Mercedes Benz Vito or Chrysler Voyager and consider a side entry conversion by a specialized vehicle conversion company like Problem Management Engineering that would allow space behind the wheelchair passenger to carry larger equipment. The costs related to both options have been included in the Occupational Therapy tables.

66 The first option currently costs approximately $25,500. The second option costs approximately $18,500.

67 There are other appliances the plaintiff will need before she reaches stage 2 or stage 3, but these are not major cost items.

68 The plaintiff has an interest in sewing and it is an important occupational therapy for her. There are breath-controlled sewing machines available which in due course she will need even if she is admitted to a nursing home. The cost is about $1,450.

69 If it were appropriate to assess the plaintiff’s need for maintenance only up to the time she reached stage 2 or stage 3, on the basis that she should then be admitted to a nursing home (together with provision for equipment she will still need after that stage), I would assess a reasonable provision for such maintenance to be not less than $450,000 made up as follows:

(a) attendant care for 4 years at $9,360 - $46,800
(b) attendant care for 5 years at $46,200 - $231,000
(c) kitchen modification - $7,000
(d) hoist for hydrotherapy pool - $7,500
(e) air-conditioning modification - $2,705
(f) wheelchairs - $40,000
(g) motor vehicle - $18,500
(h) breath-controlled sewing machine - $1,450
(i) provision for contingencies against the likelihood that the level of care for 4 years in (a) would exceed an additional 6 hours per week and the possibility that the level of care in (b) may be required for more than 5 years, as well as for general contingencies - $100,000

Total - $454,955

70 To avoid misunderstanding, I should make it clear that I am not, at this stage of my reasons, accepting or rejecting the defendant’s submission that provision for the plaintiff’s proper maintenance should not extend to intensive home care once the plaintiff reaches stage 2 or stage 3. Nor am I saying the provision in the order of $450,000 would be “proper” maintenance if provision were to be limited on the principle for which the defendant contends. That assessment could not be made without considering the other matters indicated earlier in my reasons and to which I have yet to come, in particular, the relationship between the plaintiff and the deceased and the claims of others on the estate. What I am concerned to do at this point is to quantify the plaintiff’s need for maintenance, so far as that can be done, up to the point she needs the level of intensive care indicated at stages 2 and 3.

71 It was common ground that once the plaintiff reaches stage 2 or stage 3 and costs of intensive personal care at home arise, the estate will be insufficient to meet fully the costs of such care. Hence, the plaintiff submits that the whole of the available estate, or if not the whole, the bulk of it, should be made available to her by way of provision under s 7. For how long the plaintiff could receive such intensive care once she reaches stage 2 or stage 3 will depend upon what money was available to her, both from the estate and from her pension, or from any other source, and also whether or not the plaintiff could secure any of the services on a voluntary basis or at a reduced cost. It would appear that the estate could fund more than two years of such intensive care in the plaintiff’s home. Depending upon the accuracy of my estimates above and the extent to which a contingency figure was availed of, the plaintiff may be able to be cared for intensively at her home for another couple of years. On the defendant’s figures, if $200,000 were an adequate provision until the plaintiff reached the point at which, according to the defendant, she should be admitted to a nursing home, there would be sufficient funds in the estate to fund four years of intensive care at home.

Relationship between the Plaintiff and the Deceased

72 The plaintiff and her sister deposed that their mother and father had deprived them of the opportunities for advancement in life when they were young because they were girls. According to the plaintiff, her parents did not allow her to have a tertiary education and refused to allow her to complete her high school education with her friend in Colorado even though her friend’s parents had offered to pay all the expenses. She says that she and her sister were deprived of proper meals and clothing. The plaintiff was raped in 1972 when she was 17. She complains that her parents responded by attacking her rather than comforting her. She said that instead of being provided with love and understanding, she received cruel physical and mental abuse. None of these matters was given any attention in final submissions. Counsel, rightly in my view, did not consider that ultimately they would be material to an assessment of what provision should be made. Courts are naturally wary of acting on the evidence of such complaints where the parties whose conduct is in question are dead and cannot give their side of the story. Particularly is that so where the events occurred more than 35 years ago.

73 In 1972, the plaintiff left home and went to live in Queensland. As I have said, she married in 1977 and was divorced in 1996. From 1989 until he died, the plaintiff’s father gave her about $100 per month to purchase vitamins. After her father died in 1993, her mother stopped that financial assistance. There is evidence from a Mrs Eileen Gordon, who was a friend and next-door neighbour of the deceased, that after Mr Archbold died in 1993, the deceased had no support from her daughters. There is some corroboration of this from Ms Lang and from the defendant. Ms Lang said that although she was at the deceased’s house two or three times a week after Mr Archbold’s funeral she never saw the plaintiff again.

74 At this time, the plaintiff was living at Mt Colah, a one-hour drive from Mona Vale. She had two children at school. She was working part-time in Asquith. She said that she nonetheless saw her mother on a weekly basis up until 1995, usually mid-week when the children were at school.

75 Mrs Gordon deposed that in late 1994 to early 1995, the plaintiff and the deceased had a falling-out. The deceased told her that it was over a bed-sitter unit which she had at Newport which was rented. The deceased said to her:

Jackie wants me to let her move into the unit – she wants to have it at a reduced rent but as you know I need this rent to live on and after a few weeks she will probably say she can’t pay the rent, then what will I do.

76 The incident appears to have happened later in 1995. In June 1995, the plaintiff was admitted to hospital for five days for treatment. She had previously left her husband in 1993 but went back to live with him. However, after an incident of what is said to have been domestic violence, her husband agreed to leave the family home. Later in the year, after her daughter had completed her HSC, the plaintiff suggested to her children that she leave the matrimonial home so that their father could return and care for them, as she was unable to do so because of her condition. At about this time, she telephoned her brother, the defendant, and left a message which, the defendant said, was abusive. She complained that the deceased had given him “Lovey’s house”, that is the house at Curl Curl. She told him that her marriage was finished; she was really sick; she could not keep working; and she did not have anywhere to live. She said “Please you’ve got to tell Mum to help me.” The call was not returned. The defendant says that this was because of the abusive language used in the call.

77 The plaintiff asked her mother if she could move into the Mona Vale house with her while she sorted out her life. She said it would not be for long. Her mother refused.

78 On 4 August 1995, she sent her mother a letter to “share my feelings with you.” She expressed her feelings about her medical condition. She said she was angry that her mother appeared not to love or care about her and appeared to love only her brother and not all three of her children. She said that she felt hurt that her mother was unable occasionally to phone her and was hurt that her mother was hesitant to give her assistance at a time when she needed it. She expressed her fears for herself and her disability. She said that she loved her mother and wanted her mother to love her. The letter clearly was an attempt to establish a closer relationship with her mother. Whilst the deceased prepared a draft of an answer to the letter, she did not answer it.

79 The deceased offered to allow her daughter to occupy her bed-sitter unit at Newport at what she said was a reduced rent of $80 per week. She arranged for her solicitor to write to the plaintiff enclosing a lease for the unit. The lease was for $80 per week and included special conditions. The effect of the special conditions was that the parties were to acknowledge that the true rental of the property was $120 per week and the rent would revert to that figure if the plaintiff obtained a family law settlement with her husband which resulted in her obtaining property or money or if she received maintenance or an income in such an amount as to disentitle her from receiving a pension. The lease required her to provide the deceased with a copy of the family law documents, either served by her or upon her in relation to a property settlement with her husband. The plaintiff deposed that she was advised by an officer of the Tenancy Tribunal that the conditions were illegal. She did not enter into the lease, nor occupy the unit.

80 In December 1995 after she left the marital home, the plaintiff telephoned the deceased and asked if she could visit her on Christmas Day. The deceased said “No I am too busy.” Further repeated attempts to ask to come down for Christmas were rejected. Her calls were not returned. She deposed that when she later learned that her mother had invited her estranged husband and children to share Christmas with her, this caused a great deal of hurt.

81 Amongst the papers which the deceased left with Mrs Gordon are some notes dated 27, 28 and 29 January 1995, which appears to be a misprint for 1996. They were notes kept by the deceased. In the first, the deceased made a record of a message left on her answering machine for her by the plaintiff. The note reads:

“ Hi. It’s Jackie here – just ringing to say I’m sad not being invited down over Xmas – but feel it may have been my fault. I should have just come down to see you anyway.

To rectify that I think I might come down Friday – I don’t have to work on Friday so give me a call and I will make a time.

82 The deceased responded by leaving a message on the plaintiff’s answering machine. She recorded that she left the following message:

I wouldn’t be available Friday or the next couple of weeks as I am very busy will get in touch with her later on.

83 On the next day, the deceased made a note of the following telephone conversation at 6.50am:

Jackie speaking ... what was the idea of my message. I told her I was very busy. She wanted to know why I couldn’t spare half hour. You did have time for my xhusband over Xmas. (at this stage she was getting very abusive

). I told her I was very busy and also I still haven’t got over the way she spoke to me over the lease and the bed-sitter. I told her I’m now going to hang up. (I didn’t have a chance to say grandchildren were down at the same time as xhusband (Ross). I didn’t want to keep talking.

84 The deceased’s failure to answer the plaintiff’s letter of 4 August 1995 and these notes which the deceased kept show that the plaintiff at this time was making efforts to try to establish a relationship with her mother and was being rebuffed. What lay behind the rebuff I cannot say. But I do not accept that the estrangement was the plaintiff’s fault or that her conduct at this time should affect her provision from the estate.

85 From about 1995, the plaintiff was unable to climb the steep steps at her mother’s house at Mona Vale. By 1997, she was wheelchair bound and unable to drive any distance from home. At that time, she did not have hand controls fitted to her car. They were not fitted until 2005.

86 Apart from the offer of the bed-sitter unit, it does not appear that the plaintiff’s mother provided any support, either financial or otherwise, to the plaintiff at what was a critical period in her life, involving as it did serious relapses with multiple sclerosis and a further separation from her husband.

87 In 1995, the deceased transferred to the defendant the property known as “Lovey’s house” at 6 Surf Road, Curl Curl. There was no evidence about “Lovey” or how “Lovey’s house” came to be in the deceased’s name. In his affidavit of 5 March 2007, the defendant deposed that he bought the property from his mother for $285,000 in 1985. He gave different evidence under cross-examination. He said that the consideration expressed on the transfer of $285,000 was the consideration based on a valuation obtained for stamp duty purposes. That consideration was not paid to his mother. Instead, he transferred a unit in Gladstone Street, Newport to his mother. That unit had been valued at $80,000. He raised $130,000 secured by mortgage over the Curl Curl property. $50,000 was used to discharge the mortgage over the Newport unit, so that his mother acquired the unit unencumbered. The other $80,000 was paid to his mother. Thus he acquired a property then valued at $285,000 for $160,000. Thirteen years later it is agreed to be worth $1,200,000. It does not appear that any substantial work has been done to it. It is a small two-bedroom fibro cottage in poor condition. Ms Lang described it as follows:

This house needs extensive work to bring it up to scratch e.g. freezing in winter, house is generally run down particularly kitchen and bathroom in poor state.

88 According to Mrs Gordon, the defendant provided continuous support for his mother by living with her and looking after the maintenance and improvement of the Mona Vale house after Mr Archbold’s death in 1993. He moved back into the Mona Vale property after his father died to look after his mother and live there almost continuously until late 1999 when he moved to the Curl Curl property.

89 There was occasional contact between the plaintiff and her mother after 1995. The plaintiff telephoned her mother in 1999 to wish her a happy 70th birthday. She sent her mother occasional Christmas, Mother’s Day and birthday cards from about 1999 to about 2002. She says, and I accept, that she received no acknowledgment of these from her mother. When she telephoned on her mother’s 70th birthday, her mother was aloof and cut the conversation short. From about 2002 there appears to have been no contact between them.

90 The plaintiff accepted that from 1999, she made no phone calls to her mother despite knowing that her mother was very ill and needed a live-in carer.

91 By March 2006, it was known that the deceased was dying. The plaintiff’s children visited their grandmother on Anzac Day 2006. Mrs Gordon told the plaintiff that her mother was sick in hospital and that her brother Ken had asked her to contact her. The plaintiff was told by Mrs Hosking that Mrs Gordon had phoned her (Mrs Hosking) and told her that their mother had nodded when asked if she wished to see them. The plaintiff did not know that her mother would have been happy to see her. She was not sure whether her mother wanted to see her. She said that:

Mum knew she was sick for many years and if she had have

wanted to resolve the situation then there was a lot of opportunity to organise that, whether she contacted me or Ken contacted us to try and resolve the situation, but she didn’t. I had to surmise that she didn’t want to see me.

92 The plaintiff had the opportunity to visit her mother before her mother died. That she did not do so I attribute partly to the reasons she advanced, namely that she was not certain that her mother would wish to see her and was concerned that she would be intruding. Her failure to do so was also partly due to the bitterness she felt towards her mother whom, in my view not unreasonably, she blamed for their estrangement.

93 Under s 9(3), the conduct of the plaintiff towards the deceased, and her character, is a relevant consideration in determining what provision ought be made in her favour. Depending upon the circumstances, estrangement between a parent and child may well reduce the moral claim that the child has to maintenance, support or advancement in life (Palmer v Dolman [2005] NSWCA 361 at [118]).

94 Senior counsel for the defendant submitted by reference to observations of Bryson JA (with whom Santow and McColl JJA agreed) in Wheatley v Wheatley [2006] NSWCA 262 at [37] that the poor state of the relationship between the deceased and the plaintiff, illustrated by their lack of communication between 1999 and 2006, even when the plaintiff was aware that her mother was ill and seriously so, operated to “restrain amplitude in the provision to be ordered”.

95 Their estrangement is certainly a factor to be taken into account in determining what provision should be ordered. However, cases are infinitely various. There is no rule that irrespective of a claimant’s need, the size of the estate, and the existence or absence of other claims on the estate, a claimant is not entitled to “ample” provision if he or she has been estranged from the testator. Bryson JA was making observations appropriate to the facts in Wheatley v Wheatley. He was not espousing any general principle as to the relevance of amplitude. The very general directions in ss 7 and 9 of the Family Provision Act require close attention to the facts of individual cases. It is an error to seek to extract statements of general principle from observations directed to the facts of a specific case.

96 The present is not a case of “bare paternity” or “bare maternity”. But even in such cases, the fact of parenthood is highly material to the existence of a duty to make provision. In this case, some provision was made. The question is as to its adequacy. I consider that the estrangement between the plaintiff and the deceased is a material matter, although for at least the early years of the estrangement, I do not consider that it has any effect on the provision the plaintiff should have. Nonetheless, even though the plaintiff was reasonably distressed at her mother’s failure to accept the proffered olive branch in 1995 and was understandably upset by her mother’s rejection of her attempts for a reconciliation, or more accurately, the establishment of a normal mother/daughter relationship, one would expect the plaintiff to have made a further attempt to re-establish that relationship when she knew her mother was seriously ill. Of course, because of the plaintiff’s own disabilities, it was not open to her to travel to see her mother at her home in Mona Vale. Driving the distance between Belfield and Mona Vale was also difficult. Nonetheless, the absence of any further attempt to telephone her mother or to write to her is a material consideration to be weighed against her very strong claims based on her financial need.

Defendant’s Care for his Mother and Contribution to her Property

97 I do not doubt that the defendant provided very extensive and loving care to his mother. As she recorded in her will, the defendant resided with her for about five years after her husband’s death and provided constant assistance to her. He lived there almost continuously until 1999 when he moved to the Curl Curl property. He was joined there by his son Damon, then about 16, in 2001. He showed exemplary attention to his mother’s health. He took her to her medical appointments. He became his mother’s permanent carer from 4 June 2004 to 10 May 2006. He gave up permanent work shortly before June 2004. He did the gardening and all the outside work around the house from 1983. At some time which is not clearly identified in the evidence, he, with the assistance from time to time of his son Damon, carried out extensive improvements to the property involving constructing gardens, pavements and walls.

98 He was his mother’s primary companion in the months before her death. This was not easy. His mother was incontinent. He was going backwards and forwards to the hospital with her and providing support to her.

99 The defendant was a proper object for the deceased’s bounty. She needed to consider his needs in her will. However, account must also be taken, and should have been taken by the deceased, of the financial support she gave to the defendant during her life. As noted in para [87] above, in 1995 she provided him with the Curl Curl property in consideration for the transfer of a unit at Newport and $80,000 in cash. The deceased sold that unit in January 2002 for $165,000.

100 On 2 February 2002, the defendant received two sums of $35,500 and $95,500 from his mother which he used to pay off his mortgage on the Curl Curl property. He did not disclose those gifts in his affidavits.

101 As noted in para [25] above, on 16 July 2004 he received $317,000 from his mother. He paid $30,000 to her on 19 July 2005 to provide her with funds to pay her taxation liabilities. The net value of that gift was thus $287,000.

102 In cross-examination, the defendant admitted that on 15 January 2004, his mother gave him $20,000 and on 4 August 2004, he “probably” received a cheque from her of $5,980. During the 2004 calendar year, many of his expenses were paid for him by his mother. She gave him $500 per week. In the year ended 30 June 2004, the defendant made only two withdrawals totalling $750 from his own bank account.

103 These payments were also not disclosed in his affidavits. Indeed, his affidavit of 5 March 2007 presents quite a misleading picture. He deposed:

“ 15. During the period 04/06/2004 to 10/05/2006 it was necessary for me to become my mother’s permanent carer. Looking after my mother obliged me to give up permanent work shortly before June 2004. Thereafter I only worked about eight (8) hours per week at parttime work and my carer’s payment was only $40.00 per week which did not cover the petrol I used in tending to my mother’s needs.

16. Prior to becoming my mother’s carer I was employed by Pittwater Council from May 1992 ... .

17. During 2002 and 2003 tax years I earned $47,481.00 and $38,824.000 respectively from Pittwater Council. As a result of my caring for my mother and doing only part time work my income from personal exertion reduced to $11,736.00 in 2004, $6,556.00 in 2005 and $8,132.00 in 2006. This was supplemented in 2005 and 2006 from interest on a term deposit of $14,437.00 and $18,256 respectively.

104 In cross-examination, the defendant agreed that he finished working for the Pittwater Council in May 2003. Any impression that he gave up work at the Council to become his mother’s permanent carer would be wrong. It has often been remarked that a deponent swearing an affidavit has an obligation to tell not only the truth but the whole truth. It was not the whole truth to set out the defendant’s loss of income from personal exertion from the time he started permanently caring for his mother in June 2004 without disclosing the substantial payments he received from his mother in 2004.

Defendant’s Current Financial Position

105 In an affidavit sworn on 31 January 2008, the defendant deposed that he has the following assets and liabilities:

Assets

6 Surf Road, Curl Curl (F.I. 52/5659) $ 995,000.00

1993 Nissan Navara Ute $ 2,000.00

Warringah Credit Union $ 1,870.00

Greater Building Society $ 5,047.00

Greater Building Society – Term Deposit $ 230,000.00

Colonial First State Imputation

$ 4,000.00

$1,237,917.00

Plus Superannuation $ 34,000.00

Liabilities

ATO – Income Tax – Estimate for years ended

30/06/2005, 30/06/2006 and 30/06/2007 $ 9,000.00

106 The value of $995,000 for the Curl Curl property was the Valuer General’s 2007 valuation for land value. It was common ground that for the purposes of the present proceedings the property should be taken to have a value of $1,200,000.

107 There is almost no evidence of Ms Lang’s financial position. There is no evidence as to the extent to which she might be expected to contribute any financial resources she has to the financial needs of the defendant. Given his present financial position, that question presumably has not arisen. She is on a single mother’s pension, although whether that is a full or a part pension was not revealed. She could be entitled to a part pension if she owns a home and has other assets which do not exceed $529,250, or, if she does not own a home, if she has assets less than $650,250. What assets, if any, she has below those levels was not revealed in the evidence.

108 Because of health issues, the defendant does not work for more than 8-14 hours per week. He works as a health education officer for the Northern Area and Central Coast Health Service. He deposes that his gross income is only $616 per week because his health prevents him from working a normal working week. He deposes that his estimated weekly outgoings totalled $940 per week although the annexed list of outgoings totalled $870.40. The difference was not explained. He deposes that he expected payments in respect of his younger son to increase in 2008 because he will commence kindergarten which will cost the defendant $70 per day. To make ends meet, he has drawn on his capital. He deposes that since April 2007, his investments in the Greater Building Society have been reduced by at least $30,000.

109 Senior counsel for the defendant submitted that it is unlikely that the defendant’s financial position will improve because his medical condition causes fatigue which prevents him from working longer than 8-14 hours a week.

110 The defendant has been diagnosed with:

(a) debilitating depression;
(b) chronic hepatitic C;
(c) chronic fatigue;
(d) asthma;
(e) poorly controlled hypertension;
(f) substance issues; and
(g) gastro oesophageal reflux disorder.

has multiple debilitating symptoms associated with his over twenty year history of Hepatitis C including right upper quadrant abdominal pain, severe nausea, vomiting, arthralgia, insomnia and headaches.

111 There is an available treatment for his Hepatitis C. It would require six months of treatment and would have a 70-80 per cent chance of cure. The side effects of the treatment include the potential worsening of psychiatric conditions. In February 2007, Dr Goldberg considered that the defendant’s chronic depression continued to be an obstacle to initiating treatment for Hepatitis C. Dr Napoli said that if his depression could be stabilised and his intake of alcohol limited, the defendant would be a candidate for treatment. Although the defendant has from time to time recommenced drinking alcohol, his difficulties in that regard appear to be largely under control. The major issue is his depression.

112 To date, the defendant has not chosen to take up such treatment for Hepatitis C. That is because he fears adverse depressive side effects from the treatment. However beneficial the treatment might otherwise be, it would be of no use if he committed suicide. It was submitted by counsel for the plaintiff that his refusal of treatment was unreasonable. I do not accept that that is so. In my view, Dr Goldberg’s report (upon which there was no cross-examination) is consistent with the defendant’s chronic depression being an obstacle to the initiation of that treatment. Dr Goldberg reported that the defendant had been depressed since he was a teenager. He commenced on anti-depressants and counselling in 1998 and has been treated with a number of drugs and other therapy since 2005. Dr Goldberg reported that, despite all of the treatments, he remained very depressed, partly due to his unresolved grief over the death of his mother.

113 It remains a distinct possibility that in time the defendant’s depression will be stabilised and he will be in a position to undertake the treatment which has a 70-80 percent chance of being successful in curing his chronic liver disease and consequently relieving him from his chronic fatigue. However, it is not possible to say on the evidence as to whether this is more than a possibility. It is not possible to make any assessment of the probability of his being so cured.

114 The persons with claims on the defendant’s financial resources comprise both his sons and Ms Lang. His son Damon is now 21. Damon lives in the Curl Curl property rent-free. There is little evidence about his position except that he is employed. He commenced an apprenticeship and a course at TAFE, but there is no evidence, one way or the other, as to whether he completed those courses. There is no evidence as to the nature of his employment, how much he earns, or otherwise as to his financial position.

115 The defendant clearly has an obligation to support his younger son who is three. His relationship with Ms Lang is not very clear. They have been “in a relationship” since 1990. As noted above, she lives at Newport. The defendant lives in the property at Grandview Parade, Mona Vale. They see each other once or twice a day and spend about four nights a week at each other’s home. For whatever reason, neither describes the other as his or her de facto partner. Ms Lang receives a single mother’s pension. Nonetheless, I assume that she is a person for whom the defendant would be morally obliged to provide support if she were in need. However, there is no evidence as to what that need might be. Her assets and liabilities, income and expenses, have not been disclosed.

Mrs Hosking’s Circumstances

116 In para [9], I describe Mrs Hosking as being in comfortable financial circumstances. She gave evidence in support of her sister’s claim. She deposed that “Given the assets available in my mother’s Estate, I would like to see my sister the Plaintiff in a position where her future needs will be cared for.” I accept the summary of her financial position as summarised by the defendant’s counsel following her cross-examination:

Assets Unencumbered 4 bedroom House at Bayview	$700,000
Unencumbered 2 bedroom investment unit at Narrabeen (belonging to her husband)	$350,000
Income Ms Hosking’s income from her own superannuation	$22,000 per annum
Ms Hosking’s husband’s income from his own superannuation.	$50,000 per annum
Income from additional Super Fund (apparently a self-managed super fund)	Unknown by Ms Hosking
Income from self-managed Investment Unit	$15,000
TOTAL INCOME (not including Super Fund income)	$87,000 per annum
Financial Obligations Ms Hosking has two dependent children who are 17 and 21 years old. One is studying civil engineering in Armidale and lives in college and the other is studying medicine. Ms Hosking and her husband pay the university fees ($8,500) and college fees of their child studying civil engineering ($8,500).	$17,000 per annum
Ms Hosking pays the mortgage of a child from her first marriage	Undisclosed
Strata levies and other outgoings for the investment unit

117 Mrs Hosking had little contact with her mother. As with her sister, she felt bitterly that her mother had neglected her daughters in preference to her son and had refused a relationship with them. She was not separately represented at the hearing even though the defendant submitted that such provision as should be ordered for the plaintiff should be borne first out of Mrs Hosking’s share of the estate. It was not apparent to me that the defendant had made it known prior to the hearing itself that this would be his position. I invited submissions from her but understandably she was not able to develop submissions which might have been developed had she had separate legal representation. She submitted that she had needs but that her needs were modest in comparison with those of her sister. She also submitted that she had suffered emotionally from the way her mother had treated her. While she did not expressly refer to it, I also must take into account that she suffers from psoriatic arthritis. There was no evidence about that condition except her statement (on which she was not cross-examined) that it is a progressively debilitating chronic autoimmune disease. She also suffers from asthma. In the circumstances, I should assume that she may have significant medical problems in the future.

Proper Provision for the Plaintiff’s Maintenance

118 The defendant gave evidence that he has obtained development approval for the construction of a new residence on the Curl Curl property. The initial estimate of building costs is $600,000. However, Ms Lang’s evidence was that her and the defendant’s plans were:

to live together preferably at 2 Grandview Parade, Mona Vale once this litigation is concluded. We will then constitute a family and Ken will bring Lachlan up with me and supervise and fund his education.

119 On the evidence as to the value of the distributable estate and the Curl Curl property, the defendant could acquire the Mona Vale property either by purchasing it for its market value from the estate, or by discharging a legacy to the plaintiff (to the extent the burden of the legacy fell on him) from the proceeds of the sale of the Curl Curl property. Even if the plaintiff received a legacy to the value of the entire estate, by selling the Curl Curl property, the defendant could still keep the Mona Vale property and have about $400,000 in hand to be added to his other investments. This would be more than adequate for his identified financial needs, including the need to support his younger son. It is so even on the basis that there would be a gradual reduction of his reserves of capital to meet the deficiency between his income and expenses. This is so even assuming Ms Lang does not have financial resources to contribute to the family, a matter about which he has not provided evidence.

120 I do not accept the defendant’s submission that adequate provision for the proper maintenance of the plaintiff should be limited to a provision which would allow her to maintain an independent lifestyle only until she reaches stage 2 or stage 3 of the progression of her disease. Whilst at that point the costs of her maintenance will increase dramatically, neither the defendant’s nor Mrs Hosking’s claim on the estate warrant a refusal of provision which would enable her to live for some period at home with intensive personal care. The resources of the estate are inadequate to provide for such care until her death. (There is no evidence as to her life expectancy, except that Dr Walker clearly assumes that there is no reason to expect that she would not live beyond 65. There is no evidence as to whether, and if so, how, multiple sclerosis affects the life expectancy of those who suffer from the disease.) That does not gainsay that there would be considerable benefits to the plaintiff in maintaining her independence, even with a modified lifestyle, by being cared for at home. Neither the defendant’s, nor Mrs Hosking’s, claims on the estate, when assessed in terms of need, can stand comparison with those of the plaintiff.

121 If the only relevant criterion in determining what is adequate provision were the respective needs of the claimants on the estate, I consider the plaintiff would be entitled to the whole of the estate. However, need is not the only criterion, although it is usually the most significant criterion. Counsel for the defendant emphasised that he was the deceased’s chosen recipient of her testamentary bounty. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ said (at 19) that:

All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

122 In Walker v Walker (Supreme Court of New South Wales, Young J, 17 May 1996, unreported) Young J (as his Honour then was) said (at 30-31):

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 at 19

123 This passage was approved by the Court of Appeal in Palmer v Dolman at [112] with a rider which is not presently material.

124 These observations stand as a reminder that the testator is often far better placed than the Court to make a just assessment of all of the claims on his or her estate, and that many material matters known to a testator may not surface by the time a claim for provision is adjudicated upon, or, where matters do surface, the materials made available to the Court may depart substantially from the true facts as known by the testator. That provides a very sound reason for the Court to be slow to depart from the testator’s testamentary wishes (Pontifical Society for the Propagation of the Faith v Scales per Dixon CJ at 20). In the present case, this consideration has diminished weight. Whilst I can readily conceive that the deceased may have had good grounds for preferring her son as an object of her testamentary bounty compared with her daughters, having regard to the care he provided to her after her husband’s death, and whilst I also readily accept that the earlier events during the upbringing of the plaintiff and Mrs Hosking cannot be reliably adjudicated on, so that the deceased may have had more grounds for preferring the defendant to her daughters as the object of her testamentary bounty, I cannot conceive how the deceased, if she were acting as a wise and just testatrix, could have made no differential provision between her daughters in her will. Both daughters were estranged from their mother. It is beyond question that the plaintiff had much greater need. By giving the plaintiff the same share of the estate as Mrs Hosking, the deceased demonstrated that she did not give proper consideration to the plaintiff’s claims on her bounty. Not having done so in relation to the claims of the plaintiff compared with her other daughter readily leads to the conclusion that she did not give proper consideration to the relative claims of the plaintiff and her son. Nor does her will contain any acknowledgment of the very substantial benefits she provided to her son prior to making her will. In these circumstances, I do not consider that the fact that the defendant was the deceased’s chosen recipient of her testamentary bounty should carry significant weight.

125 Notwithstanding these considerations, I do not consider that the entire estate should be awarded to the plaintiff by way of provision under s 7. Even though the deceased substantially recognised her son’s contributions to her up to 2004 in the provisions she made for him during her lifetime, his exemplary care for his mother up to her death provides a claim on the estate which must be recognised. Notwithstanding her comfortable financial circumstances, and her estrangement from the deceased, I also consider that Mrs Hosking’s medical condition, to a very limited extent, represents a claim which should be given effect to. For the reasons I have given in paras [96], I also consider the conduct of the plaintiff in not contacting her mother when she knew her mother was seriously ill and dying is a matter to be taken into account.

126 These matters have to be weighed against the financial needs of both the plaintiff and the defendant and their respective financial resources. The ultimate assessment of what provision is proper involves an intuitive assessment. In cases such as this, at the last and critical point of decision, the reasoning process breaks down because of the very general criteria to be applied.

127 As set out in para [17] above, I proceed on the basis that before costs of realisation, the distributable assets will be approximately $805,000. I exclude the value of the rings as the plaintiff did not suggest that any order for provision should be satisfied out of the sale of those assets. Of that estate, the plaintiff will be entitled to receive about $85,000. In other words, there is about another $720,000 of the estate from which further provision could be made in favour of the plaintiff, (less the costs of distribution).

128 The dominant considerations are the plaintiff’s very substantial need and the mitigation of the defendant’s claim on the estate by the other financial resources provided to him during the deceased’s lifetime. In my view, the provision which should be awarded under s 7 of the Act in favour of the plaintiff out of the deceased’s estate, in addition to her entitlement under the deceased’s will, is a legacy of $620,000.

129 Section 13 provides that where the Court makes an order for provision out of the estate of a deceased person it may specify the beneficial entitlements in that estate which shall bear the burden of that provision and, in relation to each of those entitlements, the part of the burden which it shall bear. In the events which have happened, and before any order for provision is made, but after costs are taken into account, the entitlement of Mrs Hosking and the defendant to the estate, other than that which passes to the plaintiff under the will, is approximately 11.8% and 88.2%. If the provision to be made for the plaintiff were borne by Mrs Hosking and the defendant pro rata, Mrs Hosking’s share of the estate would be reduced by $73,160 to about $12,186, and the defendant’s share would be reduced by $546,840 to $88,263. Of course, a further $88,000 to be added to the defendant’s financial resources would add a further measure of security for him.

130 I do not consider that such an order would work any hardship to the defendant or those dependent on him. If the defendant chose to satisfy the burden of the legacy which falls on him, he could do so by selling the Curl Curl property and moving into the Mona Vale property with his partner and child. The person who may be adversely affected by that outcome would be his elder son who would lose his residence which he is enjoying rent-free. He is an adult in employment. There is no evidence that that would be a hardship. In any event, I consider that the plaintiff’s needs warrant a provision of that amount.

131 On those figures, Mrs Hosking would be left with only about $12,000 from her mother’s estate, which may be further reduced by her share of the costs of realisation of assets. I see no reason to deprive her of that share in favour of the defendant. As I have said, although she is financially well-off, she has medical needs. Moreover, I am far from satisfied that the defendant has satisfied his obligation as an executor which obliged him to represent the interests of all beneficiaries. If the defendant proposed to submit, as he did, that Mrs Hosking, whose interests he was representing, should bear the burden of the plaintiff’s provision in preference to him, it behoved him to give early notice of that position to her so that she could consider her position and take legal advice. It appears that the defendant did not do so. In those circumstances, I see no reason to make any order other than that the burden of the provision in favour of the plaintiff should be borne by the defendant and Mrs Hosking pro rata.

132 For these reasons, I conclude that provisions should be made in favour of the plaintiff out of the estate by a legacy of $620,000 to be in addition to the gift of a half share of the unit at Gladstone Street, Newport. The burden of the legacy should be borne pro rata by the defendant and Mrs Hosking out of their shares of the estate.

133 Counsel may wish to make submissions as to the precise order for provision to be made, and as to the time from which interest should run on the legacy. The defendant’s notice of motion of 27 November 2007 will be dismissed. I will hear any argument as to costs of the notice of motion of 27 November 2007 and of the principal proceedings. Prima facie, the plaintiff is entitled to her costs of the proceedings, including reserved costs, on a party and party basis. Of course, this may or may not be affected by any offers of settlement which have been exchanged.

134 I direct the plaintiff’s counsel to bring in short minutes of order in accordance with these reasons at a time to be arranged. I will then hear any argument on questions of costs.

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Citations

Kay v Archbold [2008] NSWSC 254

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CITATION:	Kay v Archbold [2008] NSWSC 254
HEARING DATE(S):	03/03/08, 04/03/08
JUDGMENT DATE :	28 March 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
DECISION:	Counsel for the plaintiff to bring in short minutes of order in accordance with reasons.
CATCHWORDS:	SUCCESSION – family provision and maintenance – whether testatrix made adequate provision for applicant – bulk of estate left to son in will – significant gifts to son inter vivos – applicant an adult daughter with multiple sclerosis – competing claim of adult son with Hepatitis C. - SUCCESSION – family provision and maintenance – practice, procedure and orders – cost-capping application – costs increased by defendant executor’s failure to place all relevant evidence before the court – application not determined prior to the hearing.
LEGISLATION CITED:	Family Provision Act 1982 (NSW) Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Moore v Moore [2004] NSWSC 587 Jvancich v Kennedy (No 2) [2004] NSWCA 397 Sherbourne Estate (No 2); Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 Dijkhuijs v Barclay (1988) 13 NSWLR 639 In the Estate of Guthrie (1983) 32 SASR 86 Horne v Horne [2001] NSWSC 50 Dalton v Paull (No. 2) [2007] NSWSC 803 Dinnen v Terrill [2007] NSWSC 1405 Palmer v Dolman [2005] NSWCA 361 Wheatley v Wheatley [2006] NSWCA 262 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Walker v Walker (Supreme Court of New South Wales, Young J, 17 May 1996, unreported)
PARTIES:	Jacqueline Kay v Kenneth Stanley Keith Archbold
FILE NUMBER(S):	SC 5395/06
COUNSEL:	Plaintiff: R Colquhoun Defendant: J Needham SC, S K Hill
SOLICITORS:	Plaintiff: Fitzpatrick Solicitors Defendant: Larcombe Legal