Lorking v Lorking

[2009] NSWSC 316

CITATION:	Lorking v Lorking [2009] NSWSC 316
HEARING DATE(S):	22/04/09 and 23/04/09
JUDGMENT DATE :	28 April 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ
CATCHWORDS:	Family Provision. Claim by second wife of a 49 years marriage. Deceased provided right to occupy matrimonial home and for her to receive half proceeds when sold. Claim by widow for fee simple of home. Order only increasing percentage to be received on sale of home from 50% to 65%.
PARTIES:	June Vera Lorking v Phillip William Lorking & 2 Ors
FILE NUMBER(S):	SC 2835/08
COUNSEL:	Mr M Vincent for plaintiff Mr AJ Grant for defendants
SOLICITORS:	Dibbs Barker for plaintiff Snelgroves Lawyers for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Tuesday 28 April 2009

2835/ 2008 June Vera Lorking v Philip William Lorking and 3 Ors (Estate of Sidney William Lorking)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the will of the late Sidney William Lorking who died on 10 February 2007 aged 96 years. He was survived by his second wife, the plaintiff, three children from his first marriage and two children from his second marriage.

Will of the deceased

2 In 1978 the deceased made a will leaving the whole of his estate to the plaintiff. In 2003 he made a will in which he left his wife the matrimonial home. In his last will made on 23 October 2003 he appointed his three sons from his first marriage as executors and trustees. Under the will he gave his widow a right of residence in the matrimonial home in these terms:

“3. I GIVE the following directions to my executors concerning the property that constitutes the matrimonial home of my wife and myself at my death which I refer to as "the house":

(a) my wife may live in the house as long as she wishes and I DIRECT my Trustees to pay all premiums on any insurance polices and rates and taxes levied on the property and keep the property in good repair;

(b) until my wife has, in the opinion of my executors, ceased to live in the house permanently or to comply with the condition of her right of occupation, it shall not be sold without her consent.

4. At the written request of my wife or in the event that my wife shall cease to live permanently in the house, my executors shall sell the house. “

3 In clause 6 the deceased provided that, upon the sale, the cash was to be divided with 50% given to his wife, the plaintiff, and the remaining 50% to be given to his five children (they being the three children from his first marriage and the two children from his second marriage). In clause 7 the deceased directed his trustees to hold the sum of $100,000 in trust towards the expenses, maintenance, rates or levies on the house and any premiums on insurance policies. The deceaed gave his wife all his furniture and personal effects and he gave the residue of his estate to be divided amongst his five children.

Assets in the estate

4 The matrimonial home at Nelson Road, Lindfield has been valued in a range of between $1.8 million and $1.5 million. For the purpose of this application I will adopt a figure of $1,666,666. There is cash and shares in the estate of $241,265.97 making a total of $1,907,932.

5 So far as costs are concerned the defendants’ costs are $55,999.98 which have already been paid. This figure included costs to act in another Family Provision Act claim brought by one of the deceased’s sons, Richard Lorking, which was settled. The remaining costs which have been incurred by the defendant in respect of the estate are $17,780.

6 The plaintiff’s costs have been estimated at $108,078. This is a surprising amount for a two day hearing of a very simple widow’s claim. Why it was necessary to have two solicitors working on the matter is not readily apparent given the evidence which was ultimately admitted. However, I will leave the assessment to the costs’ assessor if an order is made.

Family history

7 The deceased, Sidney William Lorking, was born in May 1911 and the plaintiff, June Lorking, in July 1921. The deceased married his first wife, Elsie May Jenner, in January 1935. They had four sons, Graeme Robert Lorking born December 1940, Philip William Lorking born in April 1945, Ross Howard Lorking in May 1948 and Bruce Craig Lorking born in January 1950.

8 The deceased’s first wife died in November 1956 when the boys were aged between eight and eighteen years of age. The eldest son, Graeme, died in January 1962.

9 The plaintiff had married in 1947 but she did not have any children. She met the deceased in 1957 and they married in January 1958. They went for a six month boat cruise for their honeymoon and returned to the family home at Ashfield. According to the plaintiff she lived at Ashfield although there is evidence disputing the extent of the time she lived there. She gave birth to John Sidney Lorking in October 1958 and Richard Warren Lorking in November 1959.

10 In 1960 the deceased acquired an interest in a hotel at Liverpool and the family moved to the hotel. There is a question as to whether or not the plaintiff and her two young sons continued to live at the hotel. The plaintiff suggests that only John Lorking moved to stay with the plaintiff’s mother at Artarmon because there were too may stairs in the hotel.

11 By early 1964 Ross had moved to stay with his paternal grandmother at Coogee and in 1964 the Liverpool Hotel was sold.

12 According to the plaintiff at this time she and Richard moved to join her other son, John, at June's mother's at Artarmon while the deceased moved to Tattersall’s Club. After a short time the deceased moved Ross, Bruce and Philip to the deceased’s mother's house at Coogee.

13 Later in 1964 the deceased bought Gearins Hotel at Katoomba and he moved there with Bruce. At this time the plaintiff underwent a hysterectomy and thereafter she remained at Artarmon with her two younger boys.

14 In 1967 the deceased’s mother died and in 1969 the deceased purchased a house at Nelson Road, Lindfield which became the matrimonial home. The deceased and the plaintiff together with Ross, Bruce, John and Richard moved to Lindfield where they lived for some years.

15 At this time, the deceased having sold his hotel interests worked as a salesman for United Distillers and in the early 1970s he worked as a courier for Pearson Bridge Engineers.

16 In 1971 Bruce moved out of Nelson Road and that year the plaintiff started part-time work at North Sydney Police station.

17 In September 1971 Ross moved out of Nelson Road.

18 In December 1978 the deceased made in his first will.

19 In early 1979 the deceased suffered a stroke and although it affected him it was not serious. The deceased and the plaintiff received part pensions at this time.

20 In June 1982 the plaintiff stopped working at North Sydney Police station.

21 In 1983 Richard moved out of Nelson Road. In 1986 the plaintiff’s mother suffered a fall at home and moved to live at Nelson Road where she remained until she died in 1992. The plaintiff received a unit at Pacific Highway, Lindfield, from her mother's estate.

22 In 1991 Richard was diagnosed with Parkinson's Disease. This has progressed and I will refer to this later.

23 From 1994 onwards the deceased suffered falls at home some resulting in hospital admissions. Shortly before he was admitted to Ashleigh Gardens nursing home in June 2003 he made a further will. In October 2003 he was admitted to Killara Gardens nursing home where he made his last will.

24 In July 2005 Richard who was suffering from Parkinsons Disease was in such a state that he had to move back into Nelson Road where he and his mother assisted each other. The deceased died on 10 February 2007 and probate was granted to defendants. The summons was filed within time.

Eligibility

25 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

Plaintiff’s situation in life

26 The plaintiff is 87 years of age, single with no dependents. She lives in the deceased’s home at Nelson Street, Lindfield with her son, Richard. Her life expectancy is 6.1 years. She suffers from severe hearing difficulties and macular degeneration. She owns the unit on the Pacific Highway in Killara which is valued approximately $420,000. There has been a range of estimates of value. She has $3,500 cash and she received the household contents under the will of the deceased. She receives the aged pension of $400 a month, rent of $440 a month from her son, John, who lives in her Killara unit and board of $480 a month from her son, Richard. She receives a small amount of interest and her total income is $1,335.60 a month.

27 The plaintiff’s expenses are $1,445 a month.

28 The deficit of approximately $100 could easily be remedied if John paid market rent for the Killara unit. John currently pays $110 a week rent whereas market rent is approximately $415 per week. The plaintiff has a life interest in the deceased’s property.

29 The plaintiff owes her sons John and Richard $47,000 as a result of the Family Provision Act claim on her mother’s estate. She borrowed these funds to pay out the claim. There does not seem to be any pressing need to repay the loans.

30 The plaintiff did not contribute to the assets in the estate. She only worked on a part-time basis from 1971 to 1982 and that was her only financial contribution to the estate.

31 The marriage was a long one which started when the deceased had four boys aged 8 years, 10 years, 13 years and 18 years. After a short time together John and Richard were born and this made it difficult for the plaintiff and the deceased. I accept the plaintiff’s evidence that she lived with the deceased at the family home at Ashfield until the move to the Liverpool Hotel. The plaintiff can probably give the only evidence of this time being the only party with a clear recollection of the period. It is also apparent that the deceased tried to accommodate her at Ashfield because there was assistance there. The children spent at least one term at Trinity Grammar as boarders probably to enable the plaintiff to settle in to the home at Ashfield.

32 Having regard to the evidence of the children who have a good recollection of their time at the Liverpool Hotel, I accept that after some time there the plaintiff returned with her children to live with her mother at Artarmon. This did not mean that there was any break in the relationship because the evidence is that there was visiting on weekends and the family still existed as a unit despite the fact that there were two households. This caused some dissatisfaction for the sons of the first marriage who felt that they did not have the support of the plaintiff. Once again in this period, as I have mentioned, there is nothing to suggest that there was a falling out between the deceased and the plaintiff. There was some suggestion that the marriage was not always happy but this evidence is only the sons’ observations of the marriage in the later years when they saw the deceased and the plaintiff from time to time. Once again there is no evidence of any separation or arguments. I would not put any great store on these observations because some difficulties are not unusual in a marriage of 49 years.

33 Certainly the plaintiff cared for the deceased when he was ill from about 2000 onwards. This was subject of course to her own difficulties of being unable to help the deceased when he had a fall. It was impossible for her to lift him and she had to call the ambulance when this happened to take him to hospital.

34 It is also necessary to consider the situation of others having a claim on the bounty of the deceased, in this case these are the deceased’s five children.

The situation in life of Philip Lorking

35 Philip is married with two children who are no longer dependent upon him. He owns with his wife their home at Croki worth $243,100. He has pension funds of $83,490, cars worth $19,500, furniture $15,000, a boat $5,000 and cash of $3,859. He has no liabilities. He is retired and his income totals $1,131.30 per month which is slightly less than his monthly expenses of $1,275.

36 He, like his brothers, did not contribute to the estate. As with his other brothers he had a good relationship with the deceased.

The situation in life of Ross Lorking

37 Ross is 60 years of age, married with two children who are not dependant. He has not put before the Court details of his financial situation. Accordingly the Court can assume that he does not wish these to be taken into account when it considers the claims on the bounty of the deceased. As I have mentioned he had a good relationship with his father.

The situation in life of Bruce Craig Lorking

38 Bruce is 58 years old and since 1998 he has lived in Tasmania. He is the Chief Financial Officer of an iron ore mining company in Burnie and a Chartered Accountant. He remarried some time ago and has two children who are 13 and 10. They are still dependant upon him and his wife.

39 He, like his brother, has not put forward his financial situation. Accordingly the Court can assume that he does not wish the Court to take this into account. He had a good relationship with the deceased and kept in touch notwithstanding his move to Tasmania.

The situation in life of John Lorking

40 John is 50 years of age, single, without any dependants. He lives at his mother’s unit and I have already mentioned the financial circumstances in respect of his renting of that unit. He has not put forward his financial situation and accordingly the Court need not take it into account.

41 He has fond memories of his father and had a good relationship with him. He works in the IT industry.

The situation in life of Richard Lorking

42 Richard is 49 years of age, single, with no dependants. As I mentioned in 1991 he was diagnosed with Parkinson’s Disease. He was retired on health grounds from the Commonwealth Bank in 2000 and has had a number of treatments including deep brain stimulation which has helped in slowing the progress of his condition but has had an unfavourable impact on his speech. At times he has great difficulty in moving but gets some alleviation from his medication. As I have mentioned he moved back to the family home in 2005 and occasionally has some part time work although he does not expect to be able to continue with that for very long.

43 His current assets are as follows: a home unit he owns at Killara valued at $610,000, bank accounts equalling $236,000, AMP Superannuation policy equalling $66,800 and an amount owed by his mother of $23,750.

44 On 30 June 2008 he had a net income of $118,329 and since he purchased the unit in September 2008 he has a net income of $2,400 per month from that unit. He has no liabilities and plainly he is in a good financial situation which is fortunate for him given his disability.

45 He also had a very good relationship with his father.

Discussion

46 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. In this respect she says that she would like to receive the fee simple of the house being the matrimonial home.

47 The question of what is an appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a long standing de facto partner has been dealt with in a number of cases.

48 In the 1970s and 1980s there were a number of decisions of single judges of this Court where they have held that a life interest with particular attributes was appropriate (see, for instance, Crisp v Burns Philp Trustee Co Ltd, Holland J, 18 December 1979; Banks v Hourigan, Waddell CJ in Eq, 2 March 1989; Cameron v Hills, Needham J, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979­- 1980) 144 CLR 431 where at 444 Mason J said:

"A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing the proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceedings of the legacy."

49 His Honour Mason J appears to be the only member of the court to have adverted to this aspect.

50 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1 that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was one of the majority in White v Barron at pp 438-440, went to some lengths to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application.

51 In Elliott v Elliott (24 April 1986, unreported), Glass JA said in reference to the above quoted statement:

"The statement there was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased. The residuary beneficiaries here have none and it seems to me that no fairness is owed to them."

52 McHugh JA agreed with his judgment and Kirby P agreed substantially with the reasons given by Glass JA. He added nothing on this aspect. I do not think that it can be said that the Court of Appeal has adopted the statement of Mason J in White v Barron. All that can be said is that they distinguished the situation before them.

53 By the late 1980s Judges in this Division were taking a slightly different view. For instance, in Court v Hunt (14 September 1987, unreported) Young J said:

" Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one Judges the evidence in these sorts of proceedings against that background knowledge.”

54 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass fifty five, had to change their accommodation and locate themselves either in retirement villages or nursing homes, which have different requirements for capital contribution.

55 After talking about the evidence necessary, his Honour went on to say:

"In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a Court to alter a life estate to a more flexible non­capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have had to be made by the widow."

56 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky (5 October 1993, unreported), Kirby P summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:

" 2. In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:
(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor, above, 458; Hunter , above, 576;
(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testators household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.
(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70;
(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;
(e) Considering what is “proper” and by inference what is “improper” as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252."

57 When talking of the need to provide a house and a sum for contingencies Kirby P is clearly referring to passages in Luciano v Rosenblum (1985) 2 NSWLR 65. In the judgment of Powell J at first instance in Elliott v Elliott (18 May 1984, unreported) his Honour said that such a type of provision only applies where it can be said there has been a long and harmonious marriage and a widow has helped build up the estate of the deceased. This seems to have been generally adopted over the years in many subsequent cases.

58 In Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 47 Sheller JA had the following to say:

"Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. That need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security."

59 In Salmon v Blackford [1997] NSWCA 274, the Court of Appeal was dealing with the case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:

"The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half of the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.

The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over 11 years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty."

60 No reference was made in either of these cases to the comments of Mason J in White v Barron. In Permanent Trustee v Fraser there were no competing claims by children of the first marriage. In Salmon v Blackford there were children of the first marriage but they appeared well off and their claims were thus minor.

61 Recently in Hertzberg & Anor v Hertzberg [2003] NSWCA 311 McColl JA referred with approval to Golosky v Golosky and said at [34]-[35]:

"34....section 9 (2) of the Family Provision Act directs the Court to consider the issues of jurisdiction and the exercise of discretion at the time of the proceedings, not the time of the will, and in this case the deed, were made. In reaching his decision the Acting Master took into account community expectations. He referred to Young J's observations in Blackford v Salmon, unreported, 27 July 1994, in which his Honour said:
'It seems to that for a widow of a 30 year marriage who has lived in the house for some time and who continues to wish to live there, the expectation in the community would be that a wise and just testator would have left her the house in fee simple.'

35. His Honour's judgment recognized the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors."

62 This also was a case where there was no competing claim. It seems to me that the comments of Mason J in White v Barron should still be given consideration when one is considering a situation of competing claims.

63 It is however worth noting the comments of Young CJ in Eq in Marshall v Carruthers [2002] NSWCA 47. His Honour agreed with the comments of Hodgson JA and added:

“ [72] Mr Ellison for the respondent strongly submitted that a person who makes a claim as a spouse of a class (a) eligible person is entitled to take comfort from the words of Mr Justice Powell in Luciano, v Rosenblum (1985) 2 NSWLR 65 at 69 that a spouse is more or less entitled to have a home plus income to enable her to live in the style to which she is accustomed provided out of the estate. Indeed this passage is actually a summary of a similar but longer statement made by Powell J in Elliott v Elliott 18 May 1984 unreported which was approved by the Court of Appeal on 24 April 1996 and which is set out in the learned Master's judgment.
[73] It must be remembered that Powell J put his proposition as a "broad general rule". However, there is in fact no "standard former spouse" to which one can just apply that proposition as a rule of thumb.
[74] Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.”

64 Similarly in Bladwell v Davis [2004] NSWCA 170 Bryson JA, reviewed the authorities and concluded that the adoption of any such preconceived position or formula was likely to result in error, stating at par [19]:

“In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409–411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse , in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.”

65 Ipp JA added at par [2]:

“I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others.”

66 In her affidavit the plaintiff said that she was concerned that her relationship with Ross, Bruce and Philip, the executors of the deceased’s estate, was a strained one and that “my residence and my home may now be effectively at their discretion”.

67 There are a number of things to be said about the plaintiff’s concerns. First, she has an absolute right to occupy the home and that right can be protected against any inadvertent sale by some minor orders in this case. The evidence before me discloses that she has had virtually no contact with Philip and Bruce Lorking since the date of death of the deceased whereas her contact with Ross Lorking has been cordial and she has no problems communicating with him. All three executors feel that they have been on good terms with the plaintiff. In a sense it appears to me that the statement by the plaintiff is formulaic of how these claims are often advanced.

68 The plaintiff made it absolutely clear why she was making the claim. She was well aware that if she succeeded in her claim that the house would go to her two children and that the children of the first marriage would in effect be disinherited. The plaintiff is happy for this to happen on the mistaken belief or perhaps self-justification that the children of the first marriage are to receive a share of residue.

69 This is indeed one of those cases where the comments of Mason J are most apposite. The deceased carefully considered the provision to be provided over the years ahead and he recoginised the obligation he had to all his children. It is notable that he did not differentiate between the children of his first and second marriage. All of them were ‘his boys’. The provision he made to allow his wife to receive a large part of the capital was sensible and at that time he knew that his wife was entitled to her mother’s unit. Presumably he appreciated that she would need some capital to move into a retirement home at some stage in the future.

70 Despite the enormous amount of effort in presenting the plaintiff’s case the plaintiff has not put forward any evidence of what the cost of a retirement home might be in her local area. However, there is another basis on which I think it is appropriate for me to consider some change to the will of the deceased.

71 The second marriage was a long one being for 49 years. There were two children brought up during the marriage. The funds in the estate came from the deceased’s many properties which he owned at the commencement of the marriage with only some minimal input from the plaintiff’s part-time work over ten years.

72 At least one of the children from the first marriage has a deficiency in his income. Although Richard Lorking is in a sound financial position he faces an uncertain future. However, it is likely that he will benefit under his mother’s will. After costs and the $100,000 provision there will be virtually no residue.

73 In order to recognise these matters, I think the deceased ought to have left the plaintiff slightly more than 50% in the event that she decides to sell the house.

74 In Golosky v Golosky (5 October 1993, unreported) the President of the Court of Appeal, Kirby P, referred to a statement by Lord Atkin in these terms:

“ In Perrin and Ors v Morgan and Ors [1943] AC 399 (HL) at 415, Lord Atkin warned judges, faced with disputes over wills, of the prospect that they might one day be obliged to meet “the group of ghosts of dissatisfied testators” who “according to a late Chancery judge, wait on the other bank of the Styx to receive the judicial personages who have misconstrued their wills.” Waiting there too will be those whose wills have been interfered with unnecessarily or excessively. “

75 There have been many occasions when courts have been warned from excessively interfering with a testator’s wishes. In this case the deceased made proper provision for the relevant parties except for the plaintiff.

76 Accordingly, I propose to increase the percentage the plaintiff should receive on sale of the home at Nelson Road, Lindfield, to 65%. There was evidence before me as to the urgent repairs required to the home which would cost in the order of $22,000. Accordingly, the provisions the deceased made in this regard are satisfactory.

77 There should be slight modification of the interest to be provided for her to have some caveatable interest over the property.

78 I direct the parties to bring in short minutes to reflect this judgment. I will, as requested, reserve the question of costs for further argument.

**********