McGrath v Courtney Ross McGrath in his capacity as Administrator of the Estate of Thelma Olive McGrath - [2004] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McGRATH -v- COURTNEY ROSS McGRATH in his capacity as Administrator of the Estate of THELMA OLIVE McGRATH & ANOR [2004] WASC 221

CORAM: MASTER NEWNES

HEARD: 18-19 AUGUST, 2 SEPTEMBER 2004

DELIVERED : 22 OCTOBER 2004

FILE NO/S: CIV 1765 of 2003

BETWEEN: LEE ROBIN RUSSELL McGRATH
Plaintiff
AND
COURTNEY ROSS McGRATH in his capacity as Administrator of the Estate of THELMA OLIVE McGRATH
First Defendant
COURTNEY ROSS McGRATH
Second Defendant

Catchwords:

Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Whether adequate provision for adult child - Turns on own facts

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6

Result:

Further provision made

Category: B

Representation:

Counsel:

Plaintiff:     Ms P J Giles
First Defendant             :     Mr I A Morison
Second Defendant         :     Mr I A Morison

Solicitors:

Plaintiff:     Clairs Keeley
First Defendant             :     Andrew Lynn & Associates
Second Defendant         :     Andrew Lynn & Associates

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Goodman v Windeyer (1980) 144 CLR 490
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135
Kitson v Franks [2001] WASCA 134
MacGregor & Anor v MacGregor [2003] WASC 169
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Sinnott (1948) VLR 279
Singer v Berghouse (No 2) (1994) 181 CLR 201

Case(s) also cited:

Barns v Barns [2003] HCA 9
Blair v Blair [2004] VSCA 149
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Collicoat v McMillan [1999] 3 VR 803
Condon v Public Trustee [2003] WASC 133
Gibson v Perpetual Trustees (WA) Ltd, unreported; SCt of WA (Owen J); Library No 960207; 19 April 1996
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Vigolo v Bostin [2002] WASCA 327; (2002) 27 WAR 121
White v Barron (1980) 144 CLR 431

MASTER NEWNES: This is an application by the plaintiff under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA), seeking further provision out of the estate of her late mother, Thelma Olive McGrath, who died on 7 October 1999. Letters of administration with the Will attached were granted to the first defendant on 19 September 2000, the named executor having renounced probate.
It is convenient first to mention the relevant members of the testatrix's family. The plaintiff was born on 11 November 1943 and is the eldest of three children. The plaintiff's sister, Lynn McGrath, was born on 28 December 1946 and her brother, the second defendant, was born on 31 December 1947. Ms Lynn McGrath took no part in these proceedings.
The plaintiff has two children, Mitchell William Duffy, born on 23 November 1963 and Laura Lee Duffy, born on 23 May 1968. Both live independently of the plaintiff. Mitchell is divorced and has three children who live with their mother. Laura is married with four children.
The Will of the testatrix was made on 6 March 1991. In the Will, the testatrix left the substantial asset of her estate, a property (the "house") in Andrews Street, Scarborough, to the second defendant. The house was sold in February 2002 for $455,000. The testatrix left the proceeds of the sale of her car to Laura Duffy and the amount standing to her credit at the Commonwealth Bank, after deduction of her funeral expenses, to Mitchell Duffy. The motor vehicle was subsequently sold for $500 and the proceeds paid to Laura Duffy. Mitchell Duffy received cash in an amount of $18,000. The testatrix bequeathed to the plaintiff the contents of the house, which have been valued at $1080.
The plaintiff says that she has been left without adequate provision for her proper maintenance and support.
The principles to be applied on an application of this nature were stated in Singer v Berghousen (No 2) (1994) 181 CLR 201, by Mason CJ, Deane and McHugh JJ at 208 ‑ 210 as follows:
"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 stage has been described as the 'jurisdictional question'. … That description means no more than that the court's power to make an order in favour of an applicant … is conditioned upon the court being satisfied of the state of affairs predicated [in s 6(1)]
…
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 Ltd [1938] AC 463 at 76. The determination of the first stage in the two‑stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and 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."
The Court then went on to consider the nature of the two‑stage inquiry. Their Honours said (at 210 ‑ 211):
"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments … The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
…
The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense."
In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J said at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
Whether a different approach is to be taken where the question of whether adequate provision has been made arises in the case of adult children has been discussed in a number of cases. In Re Sinnott (1948) VLR 279, at 280, Fullagar J said that "an adult son is, I think, prima facie able to 'maintain and support' himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act."
In Kitson v Franks [2001] WASCA 134, Parker J at [69] concluded that no distinct test is to be applied involving any notion of special need or special claim simply because a claimant is an adult. Such factors are merely to be weighed in determining whether adequate provision has been made for such a claimant in the Will of the deceased. In Bondelmonte v Blanckensee [1989] WAR 305, Malcolm CJ (at 309 ‑ 310) considered that Fullagar J in Re Sinnott (supra) was not intending to lay down a rule of law or any principle.
Whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in the life of the claimant, is to be determined as at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 494. If that question is answered in the affirmative, the Court must then exercise its discretion to make such provision as it thinks fit, taking into account the relevant facts as they exist at the time of making the order: Bondelmonte v Blanckensee (supra) per Malcolm CJ at 307.
It is, of course, well established that, in exercising its powers under the Act, the Court is not entitled to rewrite the Will to accord with its own views of fairness or justice: Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146. The freedom of testamentary disposition should not be so encroached upon that the testamentary wishes of the deceased as expressed in the Will are to have only prima facie effect, the real dispositive power being vested in the Court: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon J at 19.
Against that background, I turn to the facts of the present claim. The plaintiff's parents were both professional musicians. The plaintiff's father died on 3 July 1961, when the plaintiff was 17 years of age. The testatrix continued to work as a musician until she was 65 years of age.
The plaintiff left secondary school at the age of 15 and undertook a 12‑month secretarial course. She then commenced full‑time employment. The plaintiff continued to live at home, paying board to the testatrix, until she married at the age of 19 years of age. Lynn left home at the age of 17 to undertake nursing training. It seems that Lynn had a falling out with the testatrix when Lynn was about 21 years of age and they remained estranged until shortly before the testatrix's death. Lynn took no part in these proceedings and apparently makes no claim on the estate.
The plaintiff was divorced in 1975 and raised her two children, Mitchell and Laura, on her own from that time. The plaintiff has lived on her own for the last 15 years or so. After the divorce, she worked as an administrator for a health care service for a period of 10 years and then became practice manager at a small medical practice where she worked until approximately 2000. The practice was then acquired by Foundation Healthcare Ltd and two years later it was amalgamated with a number of practices to form a large practice known as Cottesloe Medical Centre. The plaintiff worked at that practice as a receptionist until May 2003, when she resigned. She has not worked since that time and believes that she has no realistic prospects of gaining paid employment in view of her age and the state of her health. I will come back to the circumstances in which she ceased work and her current position in due course.
At the time of the death of the testatrix, the plaintiff was working at a small medical practice of three doctors and was earning $38,263 per annum. The plaintiff had at that time total superannuation of approximately $35,000. The plaintiff owned her own home in Duncraig. The plaintiff had previously owned a house in Andrews Street, Scarborough, close to the testatrix's house. The plaintiff sold the Scarborough property in 1996 for the sum of $191,000 and bought the house in Duncraig, which had been built in 1973, for the sum of $151,000. The balance of the proceeds from the sale of the Scarborough property, after payment of estate agent's commission and other sale expenses, was used to carry out some renovations to the Duncraig house and to pay some debts.
The plaintiff says that, at the time of the testatrix's death, the Duncraig house required painting, there were some internal leaks and there was water damage to the interior of the house. She says the contents of the house were, and are, of relatively nominal value.
There was no evidence as to the value of the Duncraig property at the time of the testatrix's death, but in 2002 the plaintiff estimated its value at $170,000. It was valued at the time of the hearing at $290,000. It was, I think fairly, described by the plaintiff's counsel as a modest house.
The plaintiff also owned a 1997 Toyota sedan which she had purchased for approximately $18,000. A loan was obtained to pay for the vehicle and a mortgage over her home granted to the lender. The loan was repaid in August 2002.
The plaintiff was one month short of 56 years of age at the time of the testatrix's death. The plaintiff had arthritis of the neck, which was causing her to suffer frequent migraines, and arthritis in her right shoulder, hands, right leg and feet, and problems with a toe joint, the joint ultimately being replaced surgically in 2000. The plaintiff says that the arthritis caused her considerable pain and restricted her mobility. The plaintiff had had neck surgery in approximately 1991.
A good deal of evidence was led as to the relationship that the plaintiff and the second defendant respectively had with the testatrix. There were substantial areas of disagreement. The plaintiff considered that, in the last 20 years of her life, the testatrix had become an alcoholic and had failed to look after herself or to maintain the house in a reasonable state of order. According to the plaintiff, the testatrix increasingly withdrew from contact with friends and relatives and the house and garden became run‑down.
The plaintiff says that in 1988 it was obvious that the testatrix was unable to maintain the house in a clean and tidy condition and she suggested to the testatrix that she move into a smaller unit that would be easier to maintain. The plaintiff took the testatrix to look at some newly built home units, but the testatrix showed no interest in pursuing the matter. In 1992, the plaintiff says she again took the testatrix to look at some home units, but the testatrix refused to consider selling the house. It seems that on several occasions the testatrix resisted suggestions that she move on the basis that she wished to retain the house so the second defendant would have a home of his own after she died. It was also suggested in evidence that the testatrix had a sentimental attachment to the house because it had been built by her late husband, but the evidence as to that was conflicting and it was not clear that that was the case.
According to the plaintiff, the state of the house deteriorated to the point where it was excessively untidy and was so dirty as to be in an unhygienic state. In about 1994, the plaintiff's daughter, Laura, commenced cleaning the house weekly, for which she was usually, although not always, paid by the testatrix. The plaintiff says that, despite the house being cleaned weekly, the testatrix was unable to maintain it in a clean and tidy state.
The plaintiff says that over the years she visited the testatrix three to four times a week and often did her shopping, banking and other tasks. She also drove her to medical and other appointments and for social outings, although, at the testatrix's volition, the social outings tended to decrease over time. According to the plaintiff, the testatrix did not show any gratitude for the assistance she received and was frequently critical of the plaintiff.
As she grew older the testatrix's health deteriorated markedly. It appears from the evidence of Dr Sharp, the plaintiff's employer and, until March 1988, the testatrix's general practitioner that, among other things, the testatrix had problems with the circulation in her legs and with high blood pressure. Dr Sharp said she encouraged the testatrix to give up smoking, but with little success. The testatrix also developed non‑insulin dependant diabetes. According to the plaintiff, after about 1989 the testatrix also became obese.
In 1986, the testatrix had surgery to remove an acute thrombosis from the left femoral artery and in 1991 had a ductal breast cancer removed. Subsequently, the testatrix had a mastectomy. The cancer was not, however, contained and the testatrix was later found to have cancer in other parts of her body.
Despite the deterioration in her health caused by the spread of the cancer, the testatrix remained at home, with assistance from a Silver Chain nurse who visited daily, until some six months before her death. The plaintiff says that, outside the regular visits by the nurse, the testatrix would frequently call the plaintiff for assistance. As the testatrix's condition worsened, she was moved to a hostel and, after she was diagnosed as terminally ill in June 1999, she was transferred to the Hollywood Hospital palliative care unit. The testatrix died there on 7 October 1999.
There was disagreement between the plaintiff and the second defendant about the extent to which each visited the testatrix in the final months of her illness. The plaintiff said she visited on a daily basis, apart from a few occasions when she was unable to do so when she would send an explanatory facsimile. The second defendant says that he visited the testatrix almost every day while she was in the hostel and hospital. It seems their paths did not cross, as each disputed the frequency of the visits of the other.
In the end, I am satisfied that in the last months of the testatrix's life the plaintiff and the second defendant each provided the care and support that they were capable of providing. The plaintiff, by reason of her personality and experience, was much the more practical of the two and, in that sense, made a greater practical contribution to the testatrix's welfare, but the second defendant did all that I think he was capable of doing to comfort the testatrix in her last illness.
It is convenient at this point to say something about the position of the second defendant. Before turning to the evidence I should say that I found the second defendant to be a most unsatisfactory witness. He was evasive in cross‑examination and I am satisfied that he could not be regarded as a truthful witness. For instance, his affidavit evidence as to the amount of the proceeds of the sale of the house that he has since spent was inconsistent and turned out in cross‑examination to be untrue. In addition, in an affidavit sworn on 30 September 2003 the second defendant said he has been told he needs surgery to reconstruct his right shoulder and that he will require spinal fusion surgery in a year or so, but he is unable to afford either surgery. He said he was dependant on the money from the testatrix's estate to enable him to have it carried out. In cross‑examination, the second defendant acknowledged that he belonged to a medical benefit fund and that he knew he would be able to have the surgery carried out without cost to him. Confronted with other inconsistencies in his affidavit evidence, the second defendant asserted that he had not read any of his five affidavits properly and had only given them a cursory glance before signing them. He said he could not say whether or not the contents of them were correct.
I would treat the second defendant's evidence with caution. Where there is a conflict between the evidence of the plaintiff that of the second defendant, I would prefer the plaintiff's evidence, unless the second defendant's evidence is corroborated by other witnesses or contemporaneous documents.
The second defendant left home in about 1963, at the age of 15, and commenced employment with the State Shipping Service. He worked as a merchant seaman until he ceased work in 1993. The second defendant said that throughout his employment there were periods when no work was available, although then he received a salary, which in the period 1987 to 1993 was $140 per week. He said in cross‑examination that up to 1987 he received $14 per day "appearance money" when work was not available.

The second defendant had no record of his earnings over the years, but he gave evidence that the greatest amount he earned in any one year was an amount of some $30,000 in about 1988 or 1989.
In 1987, the second defendant suffered a back injury and went on to light duties. He retired from work due to his disability on 3 September 1993 and received a lump sum payment of $38,000. He was at that stage 45 years of age. The second defendant has not worked since and from 1995 he has received a disability pension.
An opinion as to the second defendant's medical condition, provided by a neurosurgeon in 1994, was produced in evidence by the second defendant. In that report the neurosurgeon said the defendant had a "disability of twenty‑five (25) per cent in his back and that retraining aspects should be looked at as he would probably be capable of driving a motor vehicle or crane, provided no heavy lifting on his part was involved".
A general practitioner gave an opinion in April 1994 that the second defendant was "permanently medically unfit for employment in the marine industry, however given his age and experience, he should be capable of meaningful employment in shore‑based activities. That is, I consider that Mr McGrath has a PARTIAL PERMANENT DISABLEMENT, consequent upon spinal disc degeneration and left knee arthritis" [emphasis in original].
The second defendant acknowledged in evidence that he had not sought to gain paid employment after he left the merchant navy in 1993. When he was asked in cross‑examination why he had not sought to retrain or obtain employment within his capacity he responded, "Why should I?" He then sought to explain that response by claiming that he was not fit for any work that might be available. That is not borne out by the medical evidence. I am satisfied that his failure to make any attempt to explore opportunities for other employment when he left the merchant navy in 1993 were the result of a conscious decision to retire from the workforce.
The second defendant says that in 1996 he was hit by a motor‑cycle and suffered "significant injuries". A medical report provided by his general practitioner to the Department of Social Security in July 1997 stated that the second defendant was not fit for work.
In 1981, the second defendant, then aged 34 years, commenced living in a de facto relationship with Ms Dawson‑Ryan. Ms Dawson‑Ryan was then, and has remained, in full‑time employment as a shop assistant and owns her own home. The second defendant was living with Ms Dawson‑Ryan at the time of the testatrix's death. The relationship ended in 2001. The second defendant has never married and has never had any dependants.
Although the second defendant was in employment for some 30 years, he has never acquired any significant assets. At the date of the testatrix's death, he owned nothing of any significant value. The second defendant was unable to account for the money he had earned over the course of his working life. He has had for many years an interest in working on, and rebuilding, cars, including for the purpose of drag racing, and he suggested that that, and a somewhat dissolute lifestyle, had simply absorbed his earnings. There is nothing to suggest that the second defendant has assets that he has not disclosed. It seems he has simply dissipated all the money he has earned over the years.
According to the second defendant, after he ceased work in 1993 he saw the testatrix almost every day and did most of her shopping, banking and the like. The second defendant says he had a workshop at the house where he worked on his cars and he used the house as his address for mail, but he says he would often call at the house simply to see the testatrix. It appears that in the later years of the testatrix's life, the second defendant spent a good deal of time with her, reminiscing about the past and listening to music.
The second defendant denied that the testatrix consumed excessive alcohol. The second defendant also denied that the house was run‑down and dirty. He said the house was "lived in but by no means dirty." He denied that the testatrix was obese, although he accepted that she was overweight. Ms Dawson‑Ryan said that she visited the testatrix regularly and described the house as being in a condition where an elderly lady lived, but not dirty or untidy. On the occasions of her visits she did not see evidence of excessive drinking by the testatrix.
Questions of tidiness and cleanliness are, of course, to some degree matters of opinion and reasonable views on them may differ. I think that to some extent the conflict in the evidence results from differences of opinion. In any event, I accept that the plaintiff considered that the house was dirty and untidy and that that caused her to attempt to persuade the testatrix to move to a home that was smaller and easier to maintain. What constitutes excessive consumption of alcohol may also to some extent be a matter of opinion. I think it is likely the second defendant had much more expansive views on the subject than the plaintiff. The evidence indicated that he regularly consumed alcohol with family and friends and sometimes had to be driven home because he did not think he was in a fit state to drive. Nevertheless, he has two convictions for drink driving offences. He said that he often drank with the testatrix on his visits to the house when they reminisced and listened to music, although he denied that either of them drank to excess on these occasions.
It clearly emerged in the evidence that, as Ms Dawson‑Ryan observed, the second defendant and the testatrix were very close and the testatrix treated the second defendant as a confidante and companion. Ms Dawson‑Ryan said the testatrix appeared to be closer to the second defendant than to her two daughters.
It was, I think, apparent from the evidence that, while the second defendant provided the testatrix with companionship, he made no real demands on her and did not seek to persuade her to do anything that she was not inclined to do.
The plaintiff, on the other hand, emerged as a practical person who had clear ideas as to how things should be managed. I have no doubt that she was as fond of the testatrix as the second defendant was, but her affection was inclined to manifest itself in practical measures that the plaintiff considered would assist the testatrix and improve her quality of life, rather than indulging the testatrix's inclinations. It seems the second defendant would undertake tasks for the testatrix when she asked him to do so, although I consider that he substantially overstated the extent to which he, rather than the plaintiff, did the testatrix's shopping and other regular jobs. In any event, the evidence clearly indicates that he did not take the initiative. I am satisfied that the plaintiff, on the other hand, regularly assisted the testatrix with shopping and other day‑to‑day tasks, and that she also regularly urged the testatrix to consult doctors about various medical conditions and to take the medication prescribed for them, to attend the diabetes clinic, to maintain the house and garden in a tidy state and, ultimately, to consider moving to a more manageable home. It is, I think, evident that, although it was entirely well intentioned, practical advice of this nature was rather less welcome to the testatrix than the laissez‑faire attitude of the second defendant.
In her Will, the testatrix, in making the bequest to the plaintiff, said:
"To my daughter Lee Robin McGrath, who wanted, for whatever motive I cannot fathom, to put me in a home (unless it was to gain control of my estate) I leave the contents of my house … "
It is well established that evidence of the reasons a testatrix gave for making her Will as she did is admissible. The evidence does not prove the truth of the statements made, but is received only as evidence of the testatrix's subjective reasons and the reasons are not conclusive. As was said by the Court of Appeal of New Zealand in In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 at 141:
" … the testator should not be allowed from the grave to condemn the child and to impose upon that child the positive duty of disproving the allegations as an essential preliminary to prosecuting the claim."
That passage was approved by the majority of the High Court in Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (supra) at 152.
Accordingly, where a testatrix has explained her failure to make provision for a child on the basis of some disentitling conduct, it is not for the child to disprove the disentitling conduct. The onus remains with the party seeking to uphold the Will to prove any conduct on which they seek to rely. The Court may have regard to the testator's reasons, because those reasons focus attention on issues that may need to be resolved in determining an application such as this: MacGregor & Anor v MacGregor [2003] WASC 169 at [41].
There was no evidence that at any stage the plaintiff had sought to put the testatrix in "a home" - by which I understand the testatrix to mean some form of institutionalised or managed care. It seems that the testatrix was referring to the endeavours by the plaintiff to have her move to smaller and more manageable accommodation. In 1991, when the Will was prepared, it seems the testatrix had decided that the plaintiff was not motivated by her welfare, but by some ulterior motive. There is no foundation in the evidence for the attribution of such a motive, but it appears to have caused, or at least played a part, in the decision of the testatrix to bequeath the plaintiff a relatively nominal amount of the estate.
There was also evidence that the testatrix had refused to sell the house in her lifetime because, she said, she wanted to leave it as a home for the second defendant. That wish is not, of course, decisive and must be weighed against any legitimate claim of the plaintiff to greater provision from the estate.
In summary, at the time of the testatrix's death the second defendant was 51 years of age and had been living continuously for some 18 years in a de facto relationship with Ms Dawson‑Ryan. Ms Dawson‑Ryan owned her own home and was working full‑time. The second defendant was not employed and had no significant assets of his own.
At that time, the plaintiff was almost 56 years of age, she had a small amount by way of savings or superannuation and suffered from a number of medical conditions which made it unlikely that she would be able to continue to work until she was 65, or indeed for many more years. The plaintiff owned her own house, but it required work to be done on it, and due to its age and condition would require continual maintenance.
Having regard to all of the circumstances, I am satisfied that the Will of the testatrix did not make adequate and proper provision for the plaintiff. As to the reasons that the testatrix made the bequests that she did, I have dealt with the comments of the testatrix in the Will concerning the plaintiff. I have also referred to statements made by the testatrix as to her desire to leave the house to the second defendant. In my view, the testatrix, while recognising that the second defendant should have a home of his own, in the circumstances should also have recognised the need to make greater provision for the maintenance and support of plaintiff.
It is therefore necessary to deal with the question of what provision should be made for the plaintiff.
The plaintiff is now 60 years of age. She ceased employment in May 2003 and since then has received a disability pension of approximately $448 per fortnight. The plaintiff estimates her weekly expenses at $257.45. She currently has negligible savings and her superannuation of some $36,000 has been spent on legal fees, paying off a loan for a motor vehicle and on living expenses. In 2001, the plaintiff had a fusion of her lower cervical spine and a joint in the big toe of her right foot was replaced in 2000. The plaintiff had a hip replacement in May 2004. According to the plaintiff, she has worsening arthritis in her hands and feet and suffers from severe headaches and from pain in the area of the neck. She is receiving treatment for depression.
In 2003, the plaintiff was encouraged by her employer, Foundation Health Care, to resign from her employment. Once the medical practice in which the plaintiff worked was amalgamated with other medical practices to form one large practice in April 2002, the plaintiff found it difficult, due to her medical problems, to carry out the tasks required of her in the large practice. She did not receive the sympathy or indulgences that she had previously received in the small practice, which had enabled her to carry on. In addition, the tasks now required of her necessitated much greater mobility than her arthritis readily permitted.
Dr Sharp, for whom the plaintiff worked before the practice was acquired by Foundation Health Care and who now practices at the Cottesloe Medical Centre, confirmed in evidence that the plaintiff had been unable to perform to the requirements of Foundation Health Care and that in 2003 a decision had been made by the company that her employment would have to come to an end. Dr Sharp said that in the last year of the plaintiff's employment, the plaintiff was suffering from severe osteoarthritis of the neck, which was causing frequent migraines, and her hands were obviously osteoarthritic. Dr Sharp observed that the plaintiff was taking high doses of analgesics and that her general mobility was progressively becoming very limited.
It was suggested in cross‑examination of the plaintiff that she could find a position of the sort she had previously had in a small medical practice. The plaintiff considered that her medical condition had deteriorated to the point where it was unlikely she would be able to carry out even those tasks. That view was supported by the evidence of Dr Sharp. I am satisfied that, given her age and medical condition, the plaintiff has no realistic prospect of finding paid employment.
The second defendant is currently receiving a disability pension of approximately $470 per fortnight. I have previously referred to a medical report provided by his general practitioner to the Department of Social Security in July 1997 stating that the second defendant was not fit for work. A further medical report by the same general practitioner in July 2003 stated that the second defendant's medical condition was likely to deteriorate. I accept that, given his age and health, there is now no prospect of the second defendant finding paid employment.
Since the termination of his relationship with Ms Dawson‑Ryan in 2001, the second defendant has led a somewhat itinerant lifestyle, staying with various friends for periods of time. In 2002, the second defendant lived for a period of time with Ms Dawson‑Ryan but, according to both the second defendant and Ms Dawson‑Ryan, their relationship has not been resumed. Ms Dawson‑Ryan said she let the second defendant board at her home for $100 per week because at the time he had nowhere else to go. Having observed Ms Dawson‑Ryan give evidence and under cross‑examination, I am satisfied that the relationship has not been resumed and that there is currently no reason to expect that it will. At the time of the hearing, the second defendant said he was renting a room for $110 per week.
The need of the second defendant for financial provision is plainly greater than that of the plaintiff. I accept, as submitted by counsel for the plaintiff, that that is because during his working life the second defendant made no provision for his retirement and simply spent all that he earned. Nevertheless, the position is now that the second defendant has no assets, no accommodation of his own and no source of income other than a disability pension.
The plaintiff has a house, but no significant savings and is again reliant on a disability pension. It is the case that the plaintiff could sell her present house and purchase a cheaper house to provide additional funds for her maintenance and support. In the present case, I do not consider that that is a reasonable proposition. The house is certainly not extravagant and the plaintiff has lived in it for some eight years now. In the circumstances, it would not be reasonable that she be compelled to sell it.
In the circumstances, I consider that a proper provision for the plaintiff would be 30 per cent of the estate of the testatrix. Taking into account the size of the estate, that would afford the plaintiff an adequate provision for her future maintenance and support, given her current financial circumstances. The proportion of the estate to which the second defendant would be entitled would be sufficient to enable him to acquire reasonable accommodation for himself and to have enough money left over to provide him with adequate support.
The result would be that the second defendant would not be able to afford a house of the same value as that of the plaintiff, but there is no requirement that there should be equality in the outcome and, in any event, in my view, his reasonable requirements are less. The plaintiff has seven grandchildren, one or more of whom, on the evidence, often stay with her. It is not unreasonable that her house should be sufficiently large and sufficiently equipped to cater for such occasions.
I will hear the parties on the appropriate form of orders and on costs.