McDonald v McDonald

[2008] NSWSC 1372

CITATION:	McDonald v McDonald [2008] NSWSC 1372
HEARING DATE(S):	21 and 22 July 2008
JUDGMENT DATE :	19 December 2008
JUDGMENT OF:	McLaughlin AsJ
DECISION:	5322 of 2005 WILLIAM JOHN McDONALD and ORS –v- MARILYN ANN McDONALD 1. I order that William John McDonald receive a legacy in the sum of $20,000 out of the estate of the late John William McDonald (“the Deceased”), and that Sharon McDonald receive a legacy in the sum of $20,000 out of the estate of the Deceased, each such legacy not to bear interest if paid on or before 19 January 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898. 2. I order that the claim of Gwendoline McDonald be dismissed, and that there be no order in respect to the costs of the claim of Gwendoline McDonald, to the intent that she will bear her own costs thereof. 3. I order that the costs of William John McDonald and of Sharon McDonald on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 4. The exhibits may be returned. 5. I reserve liberty to any party to apply for an order in respect to the costs of the claim of Gwendoline McDonald. 5599 of 2005 LYNETTE McDONALD –v- MARILYN ANN McDONALD 1. I order that Lynette McDonald receive a legacy in the sum of $30,000 out of the estate of the late John William McDonald (“the Deceased”), such legacy not to bear interest if paid on or before 19 January 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898. 2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 3. The exhibits may be returned.
CATCHWORDS:	SUCCESSION - family provision - claims by three adult children (one a disable person) - entire estate left to de facto partner of a relationship obtaining for 33 years - financial and material circumstances of each Plaintiff - competing claim of Defendant - identification of assets in estate - which, if any, assets were joint property of Deceased and Defendant and passed by survivorship to Defendant - obligation of executor to identify assets of estate - size of estate not sufficient to accommodate claims of successful applicants and competing claim - claim by former wife of the Deceased - factors warranting claim by former wife - failure of Deceased to pay child maintenance to his wife more than 30 years ago - failure by former wife to enforce an order for such payment - Court must look to present circumstances of applicant, not to what those circumstances might have been more than 30 years ago
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Hunter v Hunter (1987) 8 NSWLR 573 Re Fulop Deceased (1987) 8 NSWLR 679 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
PARTIES:	William John McDonald (First Plaintiff in 5322 of 2005) Sharon McDonald (Second Plaintiff in 5322 of 2005) Gwendoline McDonald (Third Plaintiff in 5322 of 2005) Lynette McDonald (Plaintiff in 5599 of 2005) Marilyn McDonald (Defendant in each proceeding)
FILE NUMBER(S):	SC 5322 of 2005; 5599 of 2005
COUNSEL:	Mr M. Young (Plaintiffs in 5322 of 2005) Ms M. Tibbey (Plaintiff in 5599 of 2005) Mr P. Glissan (Defendant in each proceeding)
SOLICITORS:	Lyons & Lyons (Plaintiffs 5322 of 2005) Peter Baker Solicitor (Plaintiff 5599 of 2005) Lander & Lander (Defendant in each proceeding)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 19 December 2008

5322 of 2005 WILLIAM JOHN McDONALD and ORS –v- MARILYN ANN McDONALD
5599 of 2005 LYNETTE McDONALD –v- MARILYN ANN McDONALD

JUDGMENT

1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982.

2 By summons 5322 of 2005 filed on 10 October 2005 William John McDonald, Sharon McDonald and Gwendoline McDonald claim an order for provision for their respective maintenance, education and advancement in life out of the estate of the late John William McDonald (to whom I shall refer as “the Deceased”).

3 By summons 5599 of 2005 filed on 27 October 2005 Lynette McDonald claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of the Deceased. Those proceedings were instituted on behalf of the Plaintiff by her tutor, the Protective Commissioner.

4 At the outset of the hearing an order was made in each proceeding that the two proceedings be heard together, and that, so far as is relevant, the evidence in the one proceeding be treated as evidence in the other proceeding.

5 The Deceased died on 2 May 2004, aged 73. He left a will dated 25 August 2003, probate whereof was on 15 July 2004 granted to Marilyn Ann McDonald, the executor named in such will (who is the Defendant to each of the proceedings). By that will the Deceased left the entirety of his estate to the Defendant.

6 The Deceased had been married only once, in 1953, to Gwendoline McDonald, who is the third Plaintiff in proceedings 5322 of 2005. Of that marriage were born four children, being Sharon (who in December 2006 by deed poll adopted the name Terri Ashton), who was born in 1956 and is presently aged 52; Lynette, who was born in 1957 and is presently aged 51; Gail, who was born in 1959 and is presently aged 49; and William, who was born in 1962 and is presently aged 46.

7 The Deceased and Mrs Gwendoline McDonald were subsequently divorced in 1964.

8 The inventory of property discloses the following assets:

Moneys in bank accounts $98,487
AMP Life Limited, allocated pension $115,959
Shares $6,681
Total $221,127

9 However, in her affidavit of 5 June 2008 the Defendant stated that the reference in the inventory of property to the Deceased’s superannuation entitlement from AMP Life Limited did not constitute an asset of the estate, but constituted a payment made directly to the Defendant in her personal capacity (as the de facto widow of the Deceased), and not in her capacity as the executor of the estate of the Deceased.

10 Further, it was the case for the Defendant that the two bank accounts conducted by the Deceased (of each of which the Defendant, at least in the later years of the Deceased’s life, was a joint signatory) was a joint bank account of herself and the Deceased, which, upon the Deceased’s death, passed by survivorship to the Defendant.

11 According to the Defendant’s affidavit of 2 March 2006, the Deceased at the time of his death had liabilities totalling $20,508 (being in respect to credit cards ($10,845), and one half of a housing loan debt ($9,662)).

12 Subsequently, the Defendant disclosed additional liabilities of the estate, being funeral expenses ($5953), and probate costs ($3905). Thus the total liabilities of the estate amounted to $30,367. All those liabilities have now been paid by the Defendant.

13 The Deceased at the time of his death was the joint tenant, together with the Defendant, of a house property situate at and known as 1 Alliedale Close, Waitara. The interest of the Deceased in that house property passed by survivorship to the Defendant, who is now the registered proprietor thereof. The Defendant estimated the value of that house property to be about $600,000 (although a subsequent market appraisal dated 11 June 2008 suggests that the value was considerably less, in the vicinityof $450,000).

14 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since if one or more of the Plaintiffs be successful in his or her claim, then such Plaintiff or Plaintiffs will normally be entitled to an order that his or her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to order that her costs be paid out of the estate of the Deceased. It was originally estimated on behalf of the Plaintiffs in proceedings 5322 of 2005 that their costs will total $50,000 (although a revised estimate suggests that their costs will be in a lesser amount), and it has been estimated on behalf of the Plaintiff in proceedings 5599 of 2005 that her costs will total $24,000; whilst it as been estimated on behalf of the Defendant that her costs in both proceedings will total $30,000.

15 The Deceased and the Defendant commenced to live together in September 1971. The de facto relationship between them obtained for almost thirty-three years, until the death of the Deceased in 2004.

16 I shall for convenience, and without intending any disrespect, refer to each of the parties to each proceeding by his or her first given name.

17 William, who trained as a chef, has been in receipt of a disability pension from Centrelink since 1990, in consequence of chronic alcoholism and pancreatitis. That pension, which is currently in an amount of $270 a week, includes rent allowance and special entitlements for pharmaceutical benefits. Since 2002 William has been able to control his alcoholism.

18 William left school at the age of about fifteen years. He said that it was whilst he was employed in the merchant navy, after undertaking an apprenticeship course as a chef, that he developed his drinking problem.

19 Until July 2007 William resided with a de facto partner, Helen Witten. In 2006 William spent a period of six months in jail, at Parramatta, apparently in consequence of domestic violence charges in relation to his de facto partner. Notwithstanding that period of incarceration, William and Ms Witten thereafter resumed cohabitation.

20 Although William’s parents separated when he was less than a year old, it was William’s evidence that he had a good relationship with his father (although he conceded that that relationship was interrupted for a time when he was aged about 19 in 1981, and when he and his then girl friend and their daughter were residing with the Deceased and the Defendant for a period of about six months).

21 Since separating from Ms Witten in July 2007 William has been living in accommodation owned by his sister, Gail Martina McDonald, for which he pays to her rent of $180 a week. He spends about $70 a week on food; his electricity bill is in an amount of about $12.50 a week. William does not own a motor vehicle and does not currently hold a drivers licence. He is unable to work, on account of his health. William’s only assets are some furniture and household appliances. He has a superannuation entitlement in an amount of about $600. He is indebted to St Vincent’s Clinic in respect to a blood test and biopsy conducted in 2006, which has not yet been paid.

22 In September 2006 William was diagnosed with two separate strains of hepatitis C. He is also suffering from pancreatitis, as a result of his alcoholism. He attends AA meetings on a weekly basis.

23 At the time when proceedings 5322 of 2005 were instituted and until September 2007 Sharon was employed as a waitress in a retirement home at Woollahra, receiving $350 net a week. She resides in a Housing Commission unit at Bondi Beach, which she shares with her daughter Vanessa and for which she pays rent of $175 a week. Vanessa, who is presently aged 19 and who suffers from a mental health condition known as early psychosis, is currently in receipt of a youth allowance of $80 a week from Centrelink. Sharon receives a carer’s pension of $98 a fortnight for looking after Vanessa.

24 Sharon has no significant assets, owning only a few items of furniture, and household appliances. She has a small superannuation entitlement.

25 From September 2007 until February 2008 Sharon was employed on a casual basis as a dietary co-ordinator, receiving $670 gross a week. At the time of the hearing Sharon was working as a switchboard operator at St Vincent’s Hospital, receiving $750 a week gross. Sharon gave evidence of her outgoings, totalling $555 a week (including rent of $215, and $150 towards reduction of a debt).

26 Sharon suffers from diverticulitis, which condition has affected her employment, and has required her to undergo periods of hospitalisation.

27 According to Sharon, she has not been able to work full-time or to complete her studies (she had commenced a nursing course at the University of Sydney) because she is the sole breadwinner for her household, and is the carer for Vanessa.

28 The marriage of Gwendoline to the Deceased lasted about ten years. Gwendoline gave evidence of violent and abusive conduct perpetrated by the Deceased towards her and their children. On one occasion the Deceased (against whom Gwendoline had obtained a restraining order) broke into Gwendoline’s residence and assaulted her with a knife, and assaulted their daughter Gail. In consequence the Deceased was charged with a criminal offence, was convicted and was sentenced to about nine months in gaol. It was Gwendoline’s evidence that at no time had the Deceased ever paid maintenance for her or for their children during the course of their marriage.

29 Gwendoline and the Deceased resided in a house property situate at and known as 24 Binda Crescent, Little Bay. That house property was acquired by Gwendoline and the Deceased from the Housing Commission. According to Gwendoline, the deposit on the purchase of that house property was provided by Gwendoline’s parents.

30 After the breakdown of her marriage with the Deceased Gwendoline met the entirety of the mortgage repayments. In order to do so, it was necessary for Gwendoline to take part time employment. It would appear (although the evidence was not entirely clear in this regard) that ultimately it was agreed between Gwendoline and the Deceased that he would transfer his interest in the Little Bay property to Gwendoline. There was in evidence an unsigned deed of settlement, apparently prepared in 1976, by which it was agreed that, in lieu of payment of maintenance to Gwendoline and in lieu of the payments in respect to the mortgage, the Deceased would transfer his interest in the Little Bay property to Gwendoline. Apparently that transfer was ultimately effected, although there was no evidence that the deed of settlement was ever executed by Gwendoline and the Deceased. Gwendoline in 1980, on account of financial necessity, sold the Little Bay property.

31 According to Gwendoline, in about 2003 she attempted to take enforcement proceedings against the Deceased for payment of arrears of maintenance for their children (which arrears were calculated to that time as being in the order $16,000). However, Gwendoline said that she eventually had to discontinue those proceedings as she was not able to pay her solicitors.

32 Gwendoline (who was born in 1932) is presently 76 years of age, and is in receipt of an aged pension ($190 a week) and a carer’s pension ($49 a week), from Centrelink. The carer’s component of her pension is in respect to the care which she provides for her daughter Gail, who is a paraplegic as a result of a motor vehicle accident in 1979 or in 1981 (both dates were given in evidence).

33 Gwendoline has been in receipt of a carer’s pension for Gail only since 2005. Apparently, it was not until then that she became aware that she could be eligible for a carer’s pension. Gwendoline’s responsibilities for Gail, who is now aged 47, includes doing her shopping and her washing, taking her to doctors and/or hospitals, and what she described as other general administrative tasks.

34 Gwendoline owns a fifteen year old motorcar (of a minimal value). She has an outstanding liability to a surgeon for $150 in respect to a procedure performed on her leg. In recent times Gwendoline has had to pay a parking fine of $222.

35 Gwendoline resides alone in a Housing Commission unit at Bondi, for which she pays $67 a week rent (that amount being automatically deducted from her aged pension). Her possessions are minimal. Her pension is barely sufficient to cover her outgoings. She has no savings and no assets.

36 Gwendoline suffers various health problems, including ischaemic heart disease, renal calculous, duodenal ulcer, osteoporosis and claudication. It is necessary for her to take various medications. She has undergone surgery for the removal of kidney stones on three occasions in the past two years.

37 Lynette is a disable person, suffering from chronic schizophrenia. Her affairs are under the management of the Protective Commissioner, consequent upon a Financial Management Order made by the Guardianship Tribunal on 12 October 2005. At the same time the Tribunal made a 12 month order appointing the Public Guardian as Lynette’s guardian, with functions relating to health care and medical and dental consents and services.

38 Lynette has a daughter Shan Kumar, who is presently aged 35 and who provided affidavit evidence on Lynette’s behalf.

39 Detailed information concerning Lynette’s financial and material circumstances, and her medical background is set forth in the Disability Advisor’s Report (Needs Assessment), dated 12 April 2006, prepared by Tracey Graham, a disability advisor with the Disability Advisory Service within the Office of the Protective Commissioner.

40 Lynette resides in a Housing Commission unit at Randwick. Previously she was living in Housing Commission accommodation at Coogee. The rent for Lynette’s accommodation (in an unspecified amount) is deducted from the disability pension which she receives from Centrelink (also in an unspecified amount).

41 She has little in the way of assets. Her finances are under the control of the Protective Commissioner. She has the assistance of Home Care, and also receives medical support from Maroubra Mobile Community Treatment Team.

42 There is no realistic possibility that Lynette will be able to undertake gainful employment at any time, presently or in the future.

43 Details of Lynette’s current and future needs are set forth in Ms Graham’s report. Her current needs include the purchase of various items of furniture and furnishing (including new bed, new heater, new clothing and shoes, as well as the purchase of a computer, regarding which last item, it was Lynette’s evidence that she is computer literate.)

44 Lynette is in need of dental treatment, although no estimate of the cost thereof was provided. She required the installation of a security door upon her unit (at an approximate cost of $500), together with the installation of security bars on a window, in respect of the cost whereof no estimate was provided. It was recommended that she also receive additional private carer services, at an additional cost of $127 a week, and that medication and nutritional supplements would cost about $2000 a year. Lynette’s present cost for Home Care services is an amount of about $27 a month.

45 Lynette’s medical records and clinical notes from the Prince of Wales Hospital were placed in evidence. In addition, evidence was given by Dr Charles Doutney, Consultant Psychiatrist at the Kiloh Centre of the Prince of Wales Hospital, annexing his report dated 1 April 2008. Dr Doutney has treated Lynette intermittently over a period of twenty years.

46 Lynette’s daughter Shan was born when Lynette was aged on 16. Lynette was engaged to Shan’s father (who was aged only about 17 at the time). However, they lived together for only about three to four months, and Lynette and Shan then went back to reside with Gwendoline at Bondi. Lynette, who had been aged only about seven when her parents separated, resumed contact with her father when she was aged about 16. Lynette gave evidence of the nature and frequency of her contact with the Deceased. That contact was both face to face and by way of cards for birthdays, Christmas and other occasions. Lynette provided a number photographs of herself and the Deceased and of occasions when she was with the Deceased.

47 According to Lynette, in about 1993 or 1994 her father taught her to drive, and after she obtained her driver’s licence he sold her a Renault motor vehicle for $2000. Lynette said that subsequently, after that the motor car had been damaged in an accident, the Deceased had replaced it by buying for her a yellow Datsun motor vehicle.

48 Marilyn disputed the nature and extent of the contact which Lynette asserted was maintained between her and the Deceased. Nevertheless, Lynette was not cross-examined on behalf of the Defendant.

49 Lynette’s sole income is her disability pension (presently in an amount unspecified). She does not have any savings. The furniture and furnishings in her residence are very basic. Most items are second hand and have been purchased from St Vincent de Paul. All Lynette’s clothing is purchased second hand. Lynette gave evidence of various activities which she would like to pursue, and the ways in which she would like to improve her lifestyle, if she were financially enabled to do so. She said that, although her health is generally good, she requires to have an eye operation, and extensive treatment. However, no details were given concerning that surgical procedure or the nature of that treatment.

50 Marilyn was born in 1946 and she is presently aged 62. She met the Deceased in 1971, when she was aged 24 years and the Deceased was aged 40 years. Marilyn and the Deceased commenced to live in a de facto relationship in September 1971. That relationship continued until the Deceased’s death almost 33 years later. At the outset Marilyn and the Deceased resided together in rented accommodation at Greenwich. Marilyn, who was then working as a shop assistant, adopted the surname McDonald, and has been known by that name ever since.

51 At the commencement of their relationship neither Marilyn nor the Deceased had assets of any significant value. They subsequently moved into rented accommodation at Wollstonecraft, and in 1974 purchased vacant land at 1 Alliedale Close, Waitara, upon which was subsequently erected the residence which from 1975 until the Deceased’s death 29 years later was their matrimonial home. Marilyn has continued to reside in that property to the present time.

52 The Deceased retired from employment at the end of 1986, when he was aged 56. According to Marilyn, that retirement was on account of health problems which the Deceased experienced, consequent upon several heart by-pass operations in 1985. Marilyn continued in employment as a shop assistant at various retail establishments, until her retirement 1996.

53 In 1982 Marilyn and the Deceased purchased a retail food and milk bar business at East Roseville. During the period while they conducted that business they lived in a residential flat above the shop, and Marilyn’s mother resided in their Waitara home. The East Roseville business was sold in March 1983. According to Marilyn, they had lost money in this enterprise.

54 In 1993 Marilyn and the Deceased subdivided the Waitara property and effected the construction of another house upon the lot thus subdivided. That house was sold in 1997 for $340,000.

55 In consequence of that sale Marilyn and the Deceased were able to reduce their original housing loan to about $30,000. They also, after payment of various expenses, received about $140,000. It was Marilyn’s evidence that that sum was invested in an allocated pension with GIO Life Limited, which was paid to the Deceased during his life. Upon his death the sum of $118,426 was paid to the Deceased’s estate by AMP Life Limited, which entity, in the meantime, according to Marilyn, had absorbed GIO Life Limited.

56 According to Marilyn, between 1986 and 1996 the Deceased’s health was fair. However, in 1996 he underwent further heart by-pass operations, and his health deteriorated. By 2000 he was virtually housebound.

57 Marilyn herself enjoyed good health until 1987 when she underwent a replacement of one hip. In 1999 she underwent a similar procedure on her other hip. It was then necessary in 2005 to repeat the first hip replacement.

58 Marilyn’s present assets consist of:

House property situate at and known as
1 Alliedale Close, Waitara
(having an estimated value of about $450,000)
Furniture, furnishings and contents of the above property
BP Superannuation entitlements
(as at 30 September 2005) $108,349
Westpac bank account (as at 2 March 2006) $41,640
1999 Toyota sedan motor vehicle (estimated value) $8,000

59 Marilyn’s income consists of a part widow’s pension, in an amount of $405 a fortnight, together with interest upon her Westpac bank account, in an amount of about $47 a fortnight, totalling $452.50 a fortnight.

60 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff.

61 I have had the benefit of receiving a written outline of submissions and chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

62 Each of William, Sharon and Lynette, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. Gwendoline, as the former wife of the Deceased, is also an eligible person, being such within paragraph (c) of the foregoing definition. Accordingly, each of the Plaintiffs has the standing to bring his or her present claim.

63 It should also be recognised that Marilyn, as the de facto partner of the Deceased at the time of his death, is also an eligible person, being such within paragraph (a) of the foregoing definition.

64 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 – 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his or her proper maintenance.

65 The High Court in Singer v Berghouse (at 209 – 210) said that the determination of the first stage

calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

66 At the outset it is necessary that the Court identify the precise nature of the assets and liabilities of the estate.

67 I have already recorded the details set forth in the inventory of property provided by the Defendant in respect to the application for a grant of probate.

68 I have also referred to the assertion of the Defendant that the two bank accounts were in fact, even if not in name, joint accounts of herself and the Deceased, which, in consequence, passed to the Defendant by survivorship. There is no doubt that those two accounts were conducted in the name of the Deceased alone. In the absence of precise evidence concerning amounts alleged to have been deposited by the Defendant into those accounts of the Deceased and used for household expenses or for other joint purposes of the Deceased and herself, with the knowledge and approval of the Deceased, I am not persuaded that any part of the contents of those accounts should be treated otherwise than as assets in the estate of the Deceased.

69 I have also referred to the assertion of the Defendant that the fund representing the Deceased’s superannuation entitlement did not constitute an asset in the estate.

70 Not only in regard to those two bank accounts, but also in regard to the superannuation money payable upon the death of the Deceased, I regarded the evidence of the Defendant to be most unsatisfactory. That superannuation money has subsequently been paid into the Defendant’s own bank account. Despite the assertion by the Defendant under cross-examination that she was quite a meticulous keeper of documents, nevertheless, she then said that she has not kept her bank statements, saying “ I never do”, and asserted that it was her practice to dispose of her bank statements.

71 The uncorroborated oral evidence of the Defendant alone left quite unclear what assets constituted the estate at the date of the death of the Deceased, and what assets presently held by the Defendant have devolved upon her consequent upon the death of the Deceased.

72 It should be emphasised that the Defendant, as the executor of the Deceased’s estate, has an obligation to place before the Court as fully and as frankly as possible all available information concerning the assets of the estate of the Deceased. In the instant case, it is difficult to resist the conclusion that the interests of the Defendant as the sole beneficiary named in the will of the Deceased, and her desire to protect those beneficial interests, have conflicted with her duty as executor to disclose to the Court the assets in the estate and what has happened to those assets.

73 The documentary material from the Westpac Banking Corporation, which is annexed to Marilyn’s affidavit of 5 June 2008, makes it quite clear that there were two accounts held in the name of the Deceased alone. Despite the submission made on behalf of Marilyn that those two accounts should be treated as joint property of herself and the Deceased, I am not satisfied (for the reasons which I have already expressed) that they were other than assets of the Deceased at the time of his death. They did not pass to Marilyn by survivorship. Thus, they presently constitute assets in the estate of the Deceased.

74 Similarly, it is apparent from the documentation provided by AMP Life Limited (in particular, the letter from that entity to Lander & Lander Lawyers, 5 August 2004) that the amount of $118,420.38 was paid to the estate of the Deceased, and was not paid to Defendant in her personal capacity. (It will be observed that that amount is somewhat greater than the amount of $115,959 set forth in the inventory of property).

75 Although it was submitted on behalf of Marilyn that the assets of the estate consisted only of the shareholdings of the Deceased, having a value of about $6,681, and that, in consequence, the estate, was in fact, insolvent, I am not persuaded that that is an accurate summary of the affairs of the estate. Rather, I am satisfied that the assets of the Deceased consisted of the moneys in the bank accounts, totalling $98,487, and the amount paid by AMP Life Limited to the estate, in an amount of $118,426.38, as well as the shares disclosed in the inventory of property.

76 For completeness, I would observe that, in any event, even if the foregoing payment by AMP Life Limited had been made to the Defendant personally, there would be available a strong argument, in the circumstances of this case, to support an assertion on the part of the Plaintiffs that that payment constituted a prescribed transaction and that the amount of that payment now constitutes notional property in the hands of the Defendant. However, in the light of the foregoing conclusion which I have expressed, that the superannuation was paid to the estate and not to the Defendant personally, it is not necessary for me to make a determination as to whether the superannuation entitlement (and also the moneys held in the bank accounts in the name of the Deceased) now constitute notional property of the Deceased.

77 It follows, then, that the value of the estate of the Deceased at the time of his death was in the order of $223,000.

78 However, there were liabilities totalling about $30,000 which would reduce the net value of the estate to about $197,000. In addition, the costs of the present proceedings have been estimated to total about $104,000 (or possibly a lesser amount). In consequence, the value of the estate available for distribution is in the order of about $90,000 (or possibly a somewhat greater amount).

79 It is quite apparent that a distributable estate of about $90,000 (or even a somewhat greater amount) is not adequate to accommodate the claims of the four Plaintiffs and the competing claim of the Defendant.

80 Each of the Plaintiffs has an extremely modest (perhaps even penurious) lifestyle. Each is dependent upon Centrelink payments, and lives what might be described as a hand to mouth existence from the day when those benefits are paid to the next payment day.

81 Gwendoline is, however, in a different situation from that of the other three Plaintiffs.

82 During the lifetime of the Deceased, Gwendoline had the benefit of an order for child maintenance against him. She chose not to enforce that order. I consider that this fact precludes any attempt by her now to recover that unpaid child maintenance as a component in her present claim for provision out of the Deceased’s estate. The Court is by the statute enjoined to look to the present circumstances of an applicant, not to what those circumstances might have been some thirty or forty years previously.

83 Further, it will be appreciated that Gwendoline, although an eligible person, is such only within paragraph (c) of the definition of that phrase contained within section 6 (1) of the Act. As such, it is necessary for her to establish, pursuant to section 9 (1) of the Act, that there are factors which warrant the making of her present application.

84 Those factors were described by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being,

factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

85 I am not satisfied that in the circumstances of this case there are such factors. In any event, whilst recognising that Gwendoline is the carer of a paraplegic daughter, nevertheless she is in somewhat better material and financial circumstances than William, Sharon and Lynette. In regard to Gwendoline’s role as carer for Gail, it should be recognised that Gwendoline does not reside with Gail. Further, that Gail herself, alone of the four children of the Deceased, has not made a claim for provision out of her father’s estate.

86 Of the three children of the Deceased who are seeking orders for provision I consider that Lynette has the greatest claim upon his estate and that she should receive from the estate a sum sufficient to enhance her frugal lifestyle.

87 Whilst recognising that the circumstances in which William finds himself are largely attributable to his own conduct and shortcomings, that fact (as was recognised by the Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573) does not reduce William’s claim upon the estate. Indeed, if anything, it may enhance that claim.

88 Whilst Sharon is looking after a schizophrenic daughter, and is in need of dental work for herself and also for her daughter, nevertheless, she has the benefit of currently being in employment.

89 I have already observed that the value of the distributable estate will be in the order of about $90,000 (perhaps somewhat more). That fund is not sufficient to accommodate the claims of each of William, Sharon, and Lynette, as well as to accommodate the competing claim of Marilyn. That competing claim, by the Deceased’s de facto partner of almost 33 years, who is the sole chosen object of the testamentary beneficence of the Deceased, is a significant one.

90 Nevertheless, in my consideration, William has established an entitlement to receive from the estate of the Deceased a relatively small legacy, which will assist him in enhancing his lifestyle, and in providing a fund to meet unexpected contingencies. I consider the appropriate amount for such a legacy to be $20,000.

91 Sharon also in my consideration has established an entitlement to receive a legacy to enhance her lifestyle, to pay for dental treatment for herself and for her daughter, and to provide a fund to meet contingencies. She also should receive a legacy of $20,000.

92 Lynette has the greatest need. I consider that she should receive a legacy of $30,000.

93 The claim of Gwendoline will be dismissed. The balance of the distributable estate will be retained by Marilyn.

94 I consider that each of the successful Plaintiffs is entitled to an order for the payment of his or her costs out of the estate of the Deceased, but such costs should not exceed the amount of the benefit given to each such successful Plaintiff.

95 Further, the Defendant is entitled to an order that her costs in each proceeding be paid out of the estate.

96 That leaves the question of the costs of the unsuccessful Plaintiff Gwendoline. Her claim was brought in proceedings 5322 of 2005, in which the other Plaintiffs, William and Sharon, were each successful. Since all three Plaintiffs in those proceedings were represented by the same solicitor and the same Counsel, the Court should be confident that the costs have not been greatly increased by the claim of Gwendoline. My present view is that I should make no order in respect to the costs of Gwendoline in proceedings 5322 of 2005, to the intent that she will bear her own costs thereof and that there will be no costs order made against her.

97 However, if Gwendoline herself, or any other party (presumably, only the Defendant), wishes to seek some other costs order in respect to the claim of Gwendoline, then an opportunity will be given in that regard.

98 I make the following orders:

5322 of 2005 WILLIAM JOHN McDONALD and ORS –v- MARILYN ANN McDONALD


1. I order that William John McDonald receive a legacy in the sum of $20,000 out of the estate of the late John William McDonald (“the Deceased”), and that Sharon McDonald receive a legacy in the sum of $20,000 out of the estate of the Deceased, each such legacy not to bear interest if paid on or before 19 January 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898.

2. I order that the claim of Gwendoline McDonald be dismissed, and that there be no order in respect to the costs of the claim of Gwendoline McDonald, to the intent that she will bear her own costs thereof.

3. I order that the costs of William John McDonald and of Sharon McDonald on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

4. The exhibits may be returned.

5. I reserve liberty to any party to apply for an order in respect to the costs of the claim of Gwendoline McDonald.

5599 of 2005 LYNETTE McDONALD –v- MARILYN ANN McDONALD


1. I order that Lynette McDonald receive a legacy in the sum of $30,000 out of the estate of the late John William McDonald (“the Deceased”), such legacy not to bear interest if paid on or before 19 January 2009, and if not so paid to bear interest at the rates prescribed for unpaid legacies pursuant to the Probate and Administration Act 1898.

2. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.

3. The exhibits may be returned.
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