O'Leary v O'Leary & Eccles

[2010] NSWSC 1347

CITATION:	O'Leary v O'Leary & Eccles [2010] NSWSC 1347
HEARING DATE(S):	22 November 2010
JUDGMENT DATE :	1 December 2010
JUDGMENT OF:	Hallen AsJ
DECISION:	1. The Plaintiff should receive, by way of provision, out of the estate of the deceased, an order in the nature of a Crisp order, in the amount of $190,000. That amount is the sum required to purchase the one bedroom plus sunroom unit in Nareen Gardens. The costs associated with the purchase, including stamp duty, if any, payable on the contract for the purchase, and all legal costs thereof should be paid out of the estate. The unit should be held in the name of the estate. 2. The amount of $190,000, less any capital loss (estimated at no more than 30%) should also be available to satisfy any costs and expenses of the following phase of the Plaintiff’s life, namely movement from that unit to other nursing, or similar type, accommodation, until the Plaintiff’s death. 3. The Defendants may enter into a contract for the purchase of the unit, or enter into any other agreement, which might include a clause with the effect be that there will be a capital loss of 30% over 5 years. 4. In addition, the Plaintiff should receive a lump sum of $10,000, absolutely, for exigencies of life. The balance of the estate, if any, up to $25,000 should be retained to provide income for the use of the Plaintiff in paying any expenses of the unit, unless the parties otherwise agree, in writing that such sum is not required. The capital sum may be used if necessary to pay any amount required which cannot be met from the income. 5. The balance of the estate, if any, after the payment of the legal costs ordered to be paid, should be distributed to Mr O’Leary as part of the share of the estate to which he is entitled. 6. The burden of the provision for the Plaintiff should be borne by the residuary estate. 7. I shall hear the parties on the form of orders and on costs if they cannot agree.
CATCHWORDS:	SUCCESSION - Family provision order sought - adequacy of provision - Plaintiff - spouse of the deceased for 26 years - estate left to children of deceased from former marriages - small estate - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life - provision to be made for Plaintiff by way of Crisp order and small capital sum
LEGISLATION CITED:	Family Provision Act 1982 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Family Provision Practice Note (Practice Note SC Eq 7)
CATEGORY:	Principal judgment
CASES CITED:	Blackford v Salmon NSWSC, 27 July 1994, unreported Bladwell v Davis & Anor [2004] NSWCA 170 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Clifford v Mayr [2010] NSWCA 6 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Court v Hunt NSWSC, 14 September 1987, unreported Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported) Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Foley v Ellis [2008] NSWCA 288 Golosky v Golosky (NSW CA, 5 October 1993, unreported) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hertzberg v Hertzberg [2003] NSWCA 311 Hoffmann v Hoffmann (1909) 29 NZLR 425, 428 In the Estate of Puckridge, Deceased (1978) 20 SASR 72 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 McKenzie v Topp [2004] VSC 90 Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 Marshall v Carruthers [2002] NSWCA 47 Mayfield v Lloyd-Williams [2004] NSWSC 419 Milillo v Konnecke [2009] NSWCA 109 O’Loughlin v O’Loughlin [2003] NSWCA 99 Re Meier (deceased) [1976] 1 NZLR 257 Robertson v Pearce [2010] NSWSC 124 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Slack-Smith v Slack-Smith [2010] NSWSC 625 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 The Auckland City Mission v The Salvation Army & Ors [2002] NZCA 33 The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker, NSWSC, 17 May 1996, unreported Welsh v Mulcock [1924] NZLR 673 Worladge v Doddridge (1957) 97 CLR 1
TEXTS CITED:	Mason and Handler’s Succession Law and Practice New South Wales Pauline Ridge, --- "Moral Duty, Religious Faith and the Regulation of Testation" [2005] UNSWLaw Jl 43; (2005) 28(3) University of New South Wales Law Journal 720
PARTIES:	Fae Theresa O'Leary (Plaintiff) Wayne Roy O'Leary (First Defendant) Gayle Marie Eccles (Second Defendant)
FILE NUMBER(S):	SC 2010/41379
COUNSEL:	Mr P Jeffriess (Plaintiff) Ms L Hawkshaw (First and Second Defendants)
SOLICITORS:	Cutlers The Law Firm (Plaintiff) Hartcher Reid (First and Second Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

1 December 2010

2010/41379 O’LEARY v O’LEARY & ECCLES

JUDGMENT

: The Plaintiff, who is the widow of Roy Granville O’Leary (“the deceased”) applies for a family provision order under Chapter 3 of the NSW Succession Act 2006 (“the Act”), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (“the former Act”), which has been repealed, effective from 1 March 2009. A family provision order is an order made by the court, under Chapter 3, in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

2 The Plaintiff commenced the proceedings by Summons filed on 16 February 2010, that is, within the time prescribed by s 58(2) of the Act (not later than 12 months after the date of the death of the deceased). She sought leave to file an amended Summons at the commencement of the hearing, in which she sought an order for the joinder of the deceased’s son, Wayne Roy O’Leary (“Mr O’Leary”), and his daughter, Gayle Marie Eccles (“Mrs Eccles”), as Defendants. The grant of leave was unopposed.

3 There is no question, in the present case, of any provision being sought out of notional estate of the deceased.

4 The following facts are uncontroversial.

5 The deceased died on 25 September 2009. He was aged 77 years.

6 The deceased left a Will that he made on 17 October 1989, probate of which was granted, on 23 April 2010, by the Supreme Court of New South Wales, to Mr O’Leary, and to Mrs Eccles, the executors appointed under the Will. They are not the children of the Plaintiff and the deceased. Mr O’Leary is the child of the deceased’s second marriage to Joan O’Leary, whilst Mrs Eccles is a child of the deceased’s first marriage to Alice Irene Shaw.

7 There was another child of the deceased’s first marriage, being, Denise Irene Lee (“Mrs Lee”), who is the oldest of the deceased’s three children.

8 The Plaintiff and the deceased married on 25 November 1983. It was the third marriage of each. They remained married to each other until the deceased’s death, although there were two periods of separation, each for a few months in the late 1980’s and, again, in the early 1990’s.

9 By the deceased’s Will, the whole of his estate was left, upon trust, to pay debts, funeral and testamentary expenses and then to be divided, equally, between Mr O’Leary, Mrs Eccles and Mrs Lee.

10 No provision at all was made for the Plaintiff in the Will of the deceased. I shall return to the deceased’s explanation for the fact that no provision had been made for her.

11 In the Inventory of Property, a copy of which was placed inside, and attached to, the Probate document, the deceased’s estate, at the date of death, was disclosed as having an estimated, or known, value of $340,000. The estate was said to consist of real property at Long Jetty, New South Wales upon which a home was built (“the Long Jetty property”), which had been owned by the deceased prior to his marriage to the Plaintiff. It was in the Long Jetty property that the deceased and the Plaintiff lived throughout their marriage.

12 In an affidavit sworn by the Defendants’ solicitor on 19 November 2010, the value of the Long Jetty property is said to be between $330,000 and $370,000. The Plaintiff’s evidence, as tendered, revealed that the Long Jetty property had a value of between $360,000 and $380,000.

13 The Defendants, in the joint executors’ affidavit, referred to an amount of $6,039.68, being cash in bank, held by the deceased at the date of his death. It appears that this amount may have been used, at least in part, to pay for the funeral expenses of the deceased.

14 At the hearing, the parties agreed that the gross distributable value of the estate should be estimated to be $362,500. If the Long Jetty property is sold, there would be costs and expenses of sale, which the parties jointly estimated to be no less than about $12,500. In addition, there were costs of obtaining probate, which costs have not been paid, of $3,535. Finally, there were two amounts to be reimbursed to Mrs Eccles, totalling $3,842.

15 Subject to the burden of costs of these proceedings, the value of the net distributable estate is estimated to be about $342,623.

16 In calculating the value of the estate finally available for distribution, the costs of the present proceedings should also be considered, since, unless the overall justice of the case requires some different order to be made, the Plaintiff, if successful, normally, will be entitled to an order that her costs be paid out of the estate of the deceased, whilst the Defendants, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate.

17 The Plaintiff’s costs of the proceedings, calculated on the indemnity basis, have been estimated to be in the order of $49,500 (inclusive of GST and upon the basis of a one day hearing). The costs and disbursements of the Plaintiff, including counsel’s fees, calculated on the ordinary basis, are said to be the same. In this regard, the Plaintiff’s solicitor was cross-examined. In summary, he appeared to accept that the reasonableness of his estimate of costs, ultimately, will be a matter for a costs assessor. However, he maintained that on whichever basis the Plaintiff’s costs were calculated, they were the same.

18 The Defendants’ costs and disbursements of the present proceedings, including counsel’s fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a one day hearing), have been estimated to be about $38,500.

19 If one uses the estimates of costs as a guide, the net distributable estate, after the payment of costs is estimated to be $254,623.

20 The first wife of the deceased, Alice Irene Shaw, is alive and is aged 84 years. She and the deceased were married for about 6 years. They were divorced in the 1950’s. She married again and there were two other children of that marriage. She is married and her husband is still alive. It is her third marriage. Mrs Lee gave evidence that her mother is aware that these proceedings are occurring, but neither Mrs Eccles, nor Mrs Lee, has gone into detail about the proceedings with her.

21 The second wife of the deceased died on 6 November 2004.

22 The persons described as eligible persons, within the meaning of the Act, are the Plaintiff, Mr O’Leary, Mrs Eccles and Mrs Lee. Each of the children of the deceased has sworn at least one affidavit in the proceedings. There is evidence that the form of the prescribed notice was served on Mrs Lee.

23 However, the first wife of the deceased, who is also an eligible person, was not served with a prescribed notice. Both parties requested me, pursuant to s 61(2)(b) of the Act, to determine that service of the prescribed notice upon Mrs Shaw is unnecessary in the circumstances of this case. I am prepared to, and do, so determine.

24 None of the eligible persons who have been served with a notice, or who have participated in the proceedings, has made a claim under the Act.

The Statutory Scheme – The Act

25 I shall discuss the statutory scheme that is relevant to the facts of the present case.

26 The wording of the Act is similar to the wording of the former Act. However, it is necessary to remember the warning of Kirby P in Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100, at 76,304:

“Purposive construction of the Act

There is always a danger where a reformed Act borrows heavily upon ideas which previously existed in the common law or in an earlier statute, that lawyers will approach the construction of the Act affected by the previous law. Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 2 NSWLR 475, 478. That danger is but an illustration, in the specialised activity of law, of a universal phenomenon of psychology long established in relation to human perception generally. We tend to perceive what we expect. We expect that with which we are familiar.

There is a particular danger in the case of the Family Provision Act in construing its terms by reference to the law which developed around the Testators' Family Maintenance and Guardianship of Infants Act 1916. That Act was passed in earlier times to govern the entitlements of a testator's family, as narrowly defined. The definition by s 3(1) of that Act confined applications to those made by “the widow, husband or children of such persons”. There was no mention in it of former spouses. Doubtless this was because, for the early part of this century, divorce was relatively infrequent and then based upon concepts of matrimonial fault which would make interference in the testamentary disposition of the deceased unlikely. When enacted, the statute was a radical interference in the power of testamentary disposition. That was a significant power over private property, the disturbance of which was regarded as highly exceptional.”

27 Whilst the relevant amendments made by the Act are not as significant to those made by the former Act, it remains necessary to bear his Honour’s warning in mind in construing the statutory framework. In doing so, a construction that promotes the purpose, or object, of the Act is to be preferred to a construction that would not promote that purpose or object. In my view, the principles applied by the courts to the former Act continue to apply, except to the extent that the Act otherwise requires.

28 The former Act was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008. A new Chapter 3 was added to the Act, which dealt with the topic of family provision from deceased estates. The long title of the Act describes that new Chapter as one to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person. Importantly, this should not be taken to mean that the Act confers upon those persons, a statutory entitlement to receive a certain portion of a deceased person's estate. Nor does it impose any limitation on the testator’s power of disposition by his, or her, will. It is only if the statutory conditions are satisfied, that the court is empowered, under the Act, to alter a testator's disposition to produce a result that is consistent with the purpose of the Act. Even then, the court's power to do so is discretionary.

29 The key provision is s 59 of the Act. The court must consider, first, whether the applicant is an eligible person within the meaning of s 57 (s 59(1)(a)). There are six categories of persons by, or on whose behalf, an application may be made. In the case of an applicant who falls within s 57(1)(d), (e) or (f), the court must next consider whether the court is satisfied that there are factors which warrant the making of the application (s 59(1)(b)). Then, if those considerations are satisfied, the court must determine whether adequate provision for the proper maintenance, education and advancement in life of the applicant has not been made by the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both (s 59(1)(c)). It is only if it is satisfied of the inadequacy of provision, that the court considers whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. In this way, the court carries out a two-stage process.

30 Other than by reference to the provision made in the will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both, s 59(1)(c) leaves undefined the norm by which the court must determine whether the provision, if any, is inadequate for the applicant’s proper maintenance, education and advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased’s Will, or on intestacy, or both, on the one hand, and to the requirement for maintenance, education and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance, education and advancement in life of the applicant.

31 It was said in the Court of Appeal (per Basten JA) in Foley v Ellis [2008] NSWCA 288 at [3], that the state of satisfaction “depends upon a multi-faceted evaluative judgment”.

32 Importantly, there no longer appears to be any sanction to consider, in s 59(1)(c) of the Act, the provision made by the deceased during his, or her, lifetime for the applicant (see, s 9(2) of the former Act).

33 Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.

34 “Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

35 Neither are the words ‘maintenance’ and ‘advancement in life’ defined. However, in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, Callinan and Heydon JJ, at [115], said, of the words 'maintenance', 'support' and 'advancement':

“'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.”

36 In In the Estate of Puckridge, Deceased (1978) 20 SASR 72, at 77 King CJ said:

“The words ‘advancement in life’ have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at 128.”

37 In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted at [114]:

“In the context of the Act the expression “advancement in life” is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. ( McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase “advancement in life” has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the “maintenance and support” of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support.”

38 The word ‘adequate’ connotes something different from the word ‘proper’. ‘Adequate’ is concerned with the quantum, whereas ‘proper’ prescribes the standard, of the maintenance education and advancement in life: Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 at [72] and at [77] per Buss JA.

39 Each of the words was considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463, at 476:

"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."

40 Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571, after citing Bosch v Perpetual Trustee Co Ltd, went on to say, of the word 'proper', that:

“It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent.”

41 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."

42 In Vigolo v Bostin at [114], Callinan and Heydon JJ said:

“[T]he use of the word “proper”…implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here…The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the “station in life” of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

43 The first stage of the process provided for by s 59(1)(c) has been described as “the jurisdictional question”: Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 at 208-209. At this stage, the court will consider whether it can make an order for provision for the maintenance, education and advancement in life of a particular applicant.

44 Whether the applicant has a 'need' is a relevant factor at the first stage of the enquiry. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).

45 Tobias JA said:

“42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
…

47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred.”

46 In Devereaux-Warnesv Hall [No 3] at [81]–[85], Buss JA said, in respect of the first stage of the process:

“The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.

'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10–11.

The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.

Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6–11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47].”

47 In the event that the court is satisfied that the power to make an order is enlivened (i.e. it is satisfied that the Plaintiff is an eligible person, and, where necessary, that factors warranting have been satisfied, and that adequate provision for the proper maintenance, education or advancement in life of the person has not been made), then, the court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.

48 The second stage of the process arises under s 59(2) and s 60(1)(b). Mason CJ, Deane and McHugh JJ, in Singer v Berghouse, at 211, affirmed that the decision made at the second stage involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.

49 Section 60 of the Act, at least in part, is new. It provides:

“(1) The court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the "applicant") is an eligible person , and
(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the court :

(a) any family or other relationship between the applicant and the deceased person , including the nature and duration of the relationship,
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant , to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person ’s estate,
(c) the nature and extent of the deceased person ’s estate (including any property that is, or could be, designated as notional estate of the deceased person ) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant , of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person ’s estate,
(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,
(f) any physical, intellectual or mental disability of the applicant , any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person ’s estate that is in existence when the application is being considered or that may reasonably be anticipated,
(g) the age of the applicant when the application is being considered,
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person ’s family, whether made before or after the deceased person ’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant ,
(i) any provision made for the applicant by the deceased person , either during the deceased person ’s lifetime or made from the deceased person ’s estate,
(j) any evidence of the testamentary intentions of the deceased person , including evidence of statements made by the deceased person ,
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person ’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so,
(l) whether any other person is liable to support the applicant ,
(m) the character and conduct of the applicant before and after the date of the death of the deceased person ,
(n) the conduct of any other person before and after the date of the death of the deceased person ,
(o) any relevant Aboriginal or Torres Strait Islander customary law,
(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person ’s death or at the time the application is being considered.”

50 It can be seen that s 60(2) enumerates 15 specific matters which the court may take into account, together with “any other matter the court considers relevant”, for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. "May" is permissive; it is not directory, nor mandatory. Thus, there is no mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person. Similarly, there is no distinction based on gender.

51 Considering each of the relevant matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. For example, when considering eligibility under ss (1)(a), many of the matters in ss (2) will be largely, if not wholly, irrelevant.

52 Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries named in the deceased’s will, whilst others do not. Importantly, also, many of the matters in ss (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).

53 Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on “the discretionary question”, namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased’s death, or subsequently.

54 This does not mean, however, that some of the matters referred to in s 60(2) will not be relevant to the jurisdictional question to be determined at the first stage. I am comforted in reaching this conclusion by the following comments made in Singer v Berghouse (at 209-210):

“… 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 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.”

55 And by the comments of Callinan and Heydon JJ in Vigolo v Bostin (at 230-231):

"We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must be taken into account and weighed with all of the other relevant factors."

56 Section 61 of the Act permits the court to disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate), but who has not made an application. However, the court may disregard any such interests only if:

(a) notice of the application, and of the court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.

57 Section 65(1) of the Act requires the family provision order to specify:

(a) the person or persons for whom provision is to be made, and

(b) the amount and nature of the provision, and

(c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and

(d) any conditions, restrictions or limitations imposed by the court.

58 The order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner which the court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

59 The order may be made, relevantly, in this case, in relation to the estate of the deceased. As the deceased died leaving a Will, his estate includes all property that would, on a grant of probate of the Will, vest in the executor of the Will (s 63 of the Act).

60 Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the Will of the deceased, or in the case of intestacy, as in a Will of the deceased (s 72(1) of the Act).

61 Section 66 of the Act sets out the consequential and ancillary orders that may be made.

62 The court, also, may, at the time of distribution of an estate that is insufficient to give effect to a family provision order, make such orders concerning the abatement, or adjustment, of distributions from the estate, as between the person in whose favour the family provision order is made and the other beneficiaries of the estate as it considers to be just and equitable among the persons affected (s 72(2) of the Act).

63 In addition to the above matters, there are some general principles that are relevant to the facts of this case. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.

64 Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate, to endeavour to achieve a ‘fair’ disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court’s role is not to reward an applicant, or to distribute the deceased’s estate according to notions of fairness or equity. Rather, the court's role is of a specific type and goes no further than the making of ‘adequate’ provision in all the circumstances for the ‘proper’ maintenance, education and advancement in life of an applicant.

65 In Cooper v Dungan (1976) 50 ALJR 539, Stephen J, at 542, reminded the court to be vigilant in guarding "against a natural tendency to reform the testator’s will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".

66 The court’s discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation (The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9, per Dixon CJ at 19); McKenzie v Topp [2004] VSC 90 at [63]. Freedom of testamentary disposition remains a prominent feature of the Australian legal system.

67 Yet, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be proper according to contemporary accepted community standards: The Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker, NSWSC, 17 May 1996, unreported; Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

68 In Vigolo v Bostin Gleeson CJ, at [11], cited with approval the observations of Salmond J in Welsh v Mulcock [1924] NZLR 673 at 685 that:

"… the testamentary duty of a man towards his family is not limited to a merely eleemosynary provision sufficient to provide the necessities of existence. This may be the measure of the legal obligation of a husband or a father in his lifetime under the Destitute Persons Act, but it is not the measure of that moral obligation - that officium pietatis , as the Roman lawyers called it - which he owes to his family in respect of the testamentary disposition of his estate, and which is recognised and enforced by the Family Protection Act."

69 Gleeson CJ went on to say at [12]:

"The 'testamentary duty' which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the State of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based."

70 And in Magill v Magill [2006] HCA 51; (2006) 226 CLR 551, albeit in another context, his Honour said, at [24]:

“The structure of marriage and the family is intended to sustain responsibility and obligation.”

71 Generally, the duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies: see, for example, Luciano v Rosenblum (1985) 2 NSWLR 65, at 69. That “broad general rule” was approved, by the Court of Appeal, in O’Loughlin v O’Loughlin [2003] NSWCA 99.

72 In Bladwell v Davis & Anor [2004] NSWCA 170, the Court of Appeal noted that “rules of thumb” should not be elevated to rules of law. Bryson JA, with whom Ipp and Stein JJA agreed, said at [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.”

73 Ipp JA added (at [2]) that:

“… where competing factors are more of 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.”

74 In McKenzie v Topp, Nettle J considered the claims of children of a first marriage to the estate of their parent, compared with the claims of the parent’s widow. At [58], his Honour observed:

“For just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.”

75 In any event, the general principle should not be regarded as one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144].

76 In Hertzberg v Hertzberg [2003] NSWCA 311, McColl JA referred with approval to Golosky v Golosky (NSW CA, 5 October 1993, unreported) and said [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 me 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 house in fee simple.

35. His Honour’s judgment recognised 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.”

77 It should be noted that Hertzberg v Hertzberg and Blackford v Salmon was each a case in which there were no competing claims. A different principle may be applicable where there are competing claims: Robertson v Pearce [2010] NSWSC 124, per Macready AsJ at [45].

78 Not infrequently, the jurisdiction of the court to interfere with the deceased’s testamentary intentions, comes to be exercised upon the application of a spouse, of advanced age, and in circumstances where tensions arise between other family members as to the real probable beneficiaries in the event that an order be made and that the applicant’s remaining number of years may prove to be relatively short. Whilst such tensions sometimes provide, at least, part of the backdrop and reasons for the respective stances taken in the litigation, the task of the Court is, no more and no less, than to exercise its jurisdiction in accordance with the Act (Hertzberg v Hertzberg per Einstein AJA at [44]).

79 This tension often presents a fundamental division on the question whether adequate provision requires an interest less than an absolute interest, namely a life interest, or Crisp order, in the property of the deceased.

80 What is described in the cases as a “Crisp order” is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported), except in part, in Mason and Handler’s Succession Law and Practice New South Wales at p 13580 at [9433]). Such an order gives an applicant an interest for life in real property, or in an interest in real property, with the right to it (should the need arise) for the purposes of securing, for the applicant’s benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the applicant moving from her own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”: Court v Hunt NSWSC, 14 September 1987, unreported, cited with approval by Ipp JA in Milillo v Konnecke [2009] NSWCA 109 at [47]-[48].

81 The conduct of an applicant is, as it always has been, a matter for the court’s consideration. However, a wise testator will recognise that perfect harmony between spouses is, in the nature of things, not to be looked for. Differences of outlook between spouses are not exceptional, so some friction between them ought to be accepted as almost inevitable. A wise testator should not allow such disharmony to blind him, or her, to the needs of his, or her, spouse for maintenance, education, or advancement in life. Some acrimony, or even estrangement, for a short period, between spouses, particularly in a long marriage, does not destroy the obligation to make such provision. The important matter is whether, in all the circumstances, it would be expected, by the community, that the testator would have to make a greater benefaction than he, or she, in fact, did, to constitute adequate provision for the proper maintenance and advancement in life of the applicant.

82 From the early days of the family protection jurisdiction, the court has disapproved of attempts by litigants to blacken each other's character - See, for example, Hoffmann v Hoffmann (1909) 29 NZLR 425, 428, per Sim J. Allegations and counter-allegations about petty incidents which occurred years before the date of death, are, generally, unlikely to advance anyone's case and when it is sought to support them by affidavits, they may merely deepen rifts in the family and dishonour the memory of the deceased. Counsel and solicitors bear a responsibility to their clients, as well as the court, in this respect: The Auckland City Mission v The Salvation Army & Ors [2002] NZCA 33 at [15], referring to Re Meier (deceased) [1976] 1 NZLR 257, 258.

Credibility of Witnesses

83 Overall, I consider that each witness who gave oral evidence gave her, or his, evidence truthfully. I am satisfied that, generally, there were not many facts seriously in dispute. Where there was disagreement, it seemed to be based on the individual’s perception. Neither party made any submission to the contrary.

84 I set out the additional facts I am satisfied are either not in dispute, or that, in my view, have been established by the evidence. I do so by reference to s 60 of the Act.

(a) any family, or other, relationship between the applicant and the deceased person, including the nature and duration of the relationship

85 The Plaintiff was the wife of the deceased at the date of his death. They were married on 25 November 1983. Thus, they had been married for nearly 26 years at the date of the deceased’s death. Although in the affidavit evidence filed on behalf of the Defendants, there was some commentary about the nature of the relationship of the deceased and the Plaintiff, I am satisfied that, for at least the last 15 years of their marriage, they were happy. Mrs Lee accepted, in cross-examination, that on the occasions she visited, they seemed happy and harmonious.

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate

86 Leaving aside any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased did not have any legal, or financial, obligation to the Plaintiff imposed upon him by statute or common law. They were not separated and there were no court orders in force relating to the provision of maintenance.

87 However, an obligation, or responsibility, to make adequate provision for the Plaintiff’s proper maintenance and advancement in life is recognised in the case of a spouse.

88 The deceased did not assume any obligations, or responsibilities, towards his three children, each of whom was an adult and in employment, or in the case of Mr O’Leary, mostly in employment. None of them was financially dependent upon him at the time of his death and for many years previously. Any obligation, or responsibility, to any of his children was that naturally arising from his parental relationship to them.

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

89 I have dealt with this earlier in this judgment. However, it is to be noted that the Long Jetty property is in a state of disrepair. The parties agree it needs a new roof and other repairs. I am satisfied that it will require no less than at least $15,000 to be spent on the roof. That may not be the only amount required to be spent to make it more habitable.

90 On any view, on the basis of the agreement of the parties, the deceased’s estate is an extremely modest one. It will be even more modest if the estimated costs, or even a part of those costs, are deducted.

91 There is no notional estate.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate


(i) The Plaintiff, not surprisingly bearing in mind her age, is not employed and she has no earning capacity.

(ii) The Plaintiff receives a pension ($706.10 per fortnight)

(iii) The Plaintiff estimated her fortnightly expenditure at about $686.

(iv) The only assets, as at November 2010, that the Plaintiff has are second hand furniture which she values at $3,000 and savings of $2,334. She has liabilities of $500 to Uniting Care, and the legal costs of these proceedings.

92 The Plaintiff says that she cannot remain living in the Long Jetty property. She states that she would prefer to live in a place where she can rely upon assistance as, and when, necessary. She states that she would like to live in “Uniting Care Nareen Gardens”, in Bateau Bay, in a suitable hostel unit, costing $235,000 for a two-bedroom unit, plus sunroom, or $190,000 for a one-bedroom unit, plus sunroom. It also provides nursing home accommodation, if necessary.

93 The evidence reveals that Uniting Care has indicated, in correspondence to the Defendants’ solicitors, that “30% deducted over 5 years”. I understand this means that there will be a loss of capital contribution of the purchase price of the hostel unit, of up to 30%, if the Plaintiff continues to live in the unit for 5 years. On the sum of $190,000, this equates to a capital loss of up to $57,000. On the sum of $235,000, this equates to a capital loss of up to $70,500.

94 Mrs O’Leary accepted in cross-examination, that the Long Jetty property, if repaired, would satisfy her need for accommodation. However, she maintained that she no longer wished to live there. One reason given which I found compelling, was that the hostel units in Nareen Gardens, which she had inspected, at Christmas, 2009, had a buzzer in each room, so that the occupant could get help whenever needed. She also referred to the “happy hours” and social evenings that she could enjoy if she lived there. Her experience of the people who did live there satisfied her that it was a most pleasant place to live and they seemed happy and contented.

95 In addition, it was put on behalf of the Plaintiff, that she needed a modest capital sum for exigencies of life.

96 Mr O’Leary’s financial and material circumstances are as follows:

(i) He was born in October 1962 and is 48 years of age;

(ii) He lives, with his de facto wife and their 18 year old daughter in unit accommodation in Long Jetty (which he has rented for 22 years).

(iii) Neither his wife, nor his daughter, work, or receive government benefits.

(iv) His average weekly income as a process worker, including holiday loading, in 2009, was $780 net. Since 1 July 2010, it may have increased to $788 net. He has a car ($5,000), and furniture ($4,000). He has $214 in savings. He has superannuation of $65,000, which cannot be accessed until 2027. His wife has no other assets and no superannuation.

(v) He has liabilities, being credit card debts, of $6,724. Whatever surplus of income over expenditure there is, he uses that surplus to make some payment to reduce such debts.

(vi) He has no capacity to earn a greater income because of his lack of formal qualifications and experience. Subject to the result of these proceedings, he is, of course, entitled to a one third share of the deceased’s residuary estate.

97 Mr O’Leary does not own, and has never owned, any real estate. He would like to purchase a home but is unable to afford one. His, and his wife’s, teeth need to be fixed, but he says he is unable to afford this.

98 He indicated that he may be able to purchase a unit for $200,000. However, when asked whether he had made any enquiries about borrowing to enable that to occur, he said that he had not made any such enquiries.

99 Mrs Eccles financial and material circumstances are as follows:

(i) She was born in November 1952 and is 58 years of age.

(ii) She is married and with her husband lives in Howard Springs, Darwin, in the Northern Territory.

(iii) She has three adult children and seven grandchildren.

(iv) She works at Royal Darwin Hospital as the Divisional Support Co-ordinator for the Department of Surgery, earning $56,673 gross per annum. Her husband is employed as a sales manager and earns $64,820 gross per annum. There is no suggestion that their income is insufficient to meet their expenses.

(v) She and her husband have the following assets and liabilities:

(a) Matrimonial home - Howard Springs NT
(joint tenants) (approx): $750,000
(b) Investment property – The Gap QLD
(joint tenants) (approx): $460,000
(c) Motor vehicle –
2006 Mitsubishi Lancer (approx): $15,000
(d) Furniture and chattels (approx): $10,000
(e) Bank account held in joint names: $50,000

Liabilities
(a) Mortgage for The Gap property (joint): $400,000
(b) Loan repayments: $9,000
(c) Credit card debt: $2,000
(d) Owed to tradesmen for renovations: $30,000



(vi) She has superannuation of approximately $190,000, to which she can have access when she retires. She hopes to work as long as possible, but may have a short break from work later this year. She does not disclose her husband’s superannuation entitlements.

100 No evidence has been given about Mrs Eccles’ needs that cannot be met from her own resources.

101 Mrs Lee’s financial and material circumstances are as follows:

(i) She was born in March 1951 and is years of age 59 years.

(ii) She is married and lives with her husband in Brisbane, Queensland. They have no children.

(iii) She works as an accountant earning $34,000 net per annum. Her husband works as a procurement officer and earns $200,000 gross per annum. There is no suggestion that their income is insufficient to meet their expenses.

(iv) She and her husband have the following assets and liabilities:




(a) Matrimonial home - St Lucia, QLD

(joint names) (approx): $820,000

(b) Motor vehicle – 2008 Lexus (approx): $36,000

(c) Furniture and chattels (joint) (approx): $25,000

(d) Bank account held in joint names (approx): $6,000

Shared Liabilities
(a) Matrimonial home mortgage: $306,000
(b) Car loan: $36,000
(c) Credit cards: $4,000

(v) She has superannuation (not able to be accessed until retirement age in 2011) of approximately $100,000. Her husband’s superannuation, which he is able to access upon retirement, is $330,000. He is able to retire whenever he wants to.

102 Mrs Lee has set out some “needs”:

(a) Repairs required on the house (approx): $85,000
(i) to roof and guttering (approx): $30,000
(ii) to old/damaged windows, sliding doors
and glass (approx): $25,000
(iii) to built in swimming pool (approx): $30,000



(e) if the applicant is cohabiting with another person - the financial circumstances of the other person

103 The Plaintiff is not co-habiting with any other person. She lives alone.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

104 The Plaintiff describes her health as “moderate”. She is legally blind, suffering from macular degeneration. She has some peripheral vision, which enables her to watch television from the distance of 8 inches. She has difficulty with hearing, using a telephone, reading and writing.

105 With assistance, she is able to care for herself, but she accepts that she cannot continue to live independently. She suffers some neck and wrist pain and backache following a motor vehicle accident in 1984. She has been depressed.

106 The Plaintiff receives assistance from Uniting Care and Meals on Wheels for which she pays. That assistance includes showering, cleaning, transport, and overseeing medication management and main meals. She is transported to senior citizens on Wednesday and to a social program on Thursdays.

107 The Plaintiff has recently had some dental work done and believes she requires some more, the estimated cost of which is $320.

108 A report of Rhonda Toope, a registered nurse, who, with an occupational therapist, assessed the Plaintiff on 1 November 2010, reveals that the Plaintiff requires help, or supervision, in respect of communication, health care tasks, activities involved in social and community participation, domestic assistance, for the preparation of meals and for home maintenance. She also states that the Long Jetty property, if repaired, is appropriate for the Plaintiff, and living there may be in her interest because she is used to it. (The Plaintiff said that if she was able to move, she would get used to a new home with time.)

109 In her affidavit sworn on 18 November 2010, Mrs Toope, who was not cross-examined, states:

“I assessed Fae for her care needs and found her eligible for low level residential care and low level care services at home. I assessed that the property at 59 Nirvana Street Long Jetty is suitable for Fae’s current aged care needs provided some minor repairs occurred such as removing carpet from the bathroom, removing mats, replacing frayed carpet, replacing a bath seat and provision of more suitable equipment.
…
Further, that the option for “independent living within a retirement village” at question 31 of the report was not recommended by the ACAT assessment. Anything that can be provided within a retirement village can be provided within a home excluding the social aspects. I would not normally recommend independent living within a retirement village unless this was already their current place of residence. Fae has mucular [sic] degeneration and therefore the familiarity of 59 Nirvana Street, Long Jetty is beneficial to Fae in comparison to a new residence which Fae does not have familiarity with.”

110 Mrs Toope’s affidavit and report does not specifically deal with what will happen in the future, or if the Plaintiff no longer feels that she is unable to live in the Long Jetty property.

111 Mr O’Leary does not suffer from any physical, intellectual, or mental, disability. He has some neck pain, but states that this does not affect his capacity to work.

112 Mrs Eccles:

(a) Suffers Sjogren’s Syndrome (diagnosed approximately 3 years ago).

(b) Is currently taking Plaquenil medication.

(c) Has been advised the disease is incurable and can suddenly progress. If this occurs, she may have to reduce her working hours or retire.

(d) Her Rheumatologist suspects she has sero-negative lupus (SLE).

(e) She is prone to ‘flare-ups’ if stressed or over-tired.

113 Mrs Lee suffers from the following medical conditions:

(a) She has genetically attributable high cholesterol, which is controlled by Lipitor medication that she must take for the rest of her life.

(b) She has a thyroid deficiency, which is managed by Thyrax medication, which she must take for the rest of her life.

(c) She has suffered a form of autoimmune system disease since 2005, which causes the immune system to randomly attack her joints, most commonly her hips, legs and feet. As a result, Mrs Lee suffers from unpredictable periodic episodes of reactive arthritis. She takes an anti-inflammatory medication, and has cortisone injections. She also takes alternative treatments such as fish oil and shark cartilage capsules daily.

(d) In the event her health deteriorates, she will no longer have the capacity to work.

(g) the age of the applicant when the application is being considered

114 The Plaintiff was born in August 1930 and is presently aged 80 years. The parties agreed that she has a life expectancy of about 10 years. (This, of course, was no more than an agreement based on a statistical average.)

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

115 The Plaintiff admits that she did not contribute to the acquisition of the Long Jetty property. She states, however, that she contributed, financially and otherwise, to its maintenance and repair, and to the running expenses of the home. She says that the money referred to in a written statement signed by the deceased (to which I shall refer) was spent over the years after 1989, on joint expenses, including general living expenses, and in contributing towards the costs of four cruises that she and the deceased took together. She also used part of the funds for cladding the Long Jetty property.

116 In January 2009, the deceased was diagnosed with throat cancer. He could not eat or drink orally and was fed by way of tube through his stomach wall. He had many radiation treatments and therapy. Despite some dispute, I am satisfied that the Plaintiff nursed him, with assistance, at home, throughout this period. He was taken to Hospital only two days before his death. Before this period, I am satisfied that the Plaintiff and the deceased were happy and contented in their marriage and that the Plaintiff contributed to the deceased’s welfare and happiness.

117 It has not been submitted that adequate consideration (not including any pension or other benefit) was received, by the Plaintiff.

118 At the date of the Plaintiff’s marriage to the deceased, Mr O’Leary was living with the deceased. He continued to live with the deceased and the Plaintiff for a short period of time after the marriage. He lived with the deceased until about 1984, when he moved away from home and commenced work as a labourer. On occasions, thereafter, he assisted the deceased to maintain, and conserve, the Long Jetty property. He helped paint inside and outside, the front verandah and steps, front and back, the eaves and a little shed in the backyard. Following the death of the deceased, he assisted the Plaintiff in cleaning the deceased’s aquarium, although he only did this once.

119 I am also satisfied that it was Mr O’Leary with whom the deceased had the closest paternal relationship. He would regularly visit the deceased and they would spend a lot of time together. I am satisfied that he contributed to the deceased’s welfare and happiness.

120 Mrs Eccles lost contact with the deceased for a period of her youth and adolescence, due to the fact of her parents divorce. She and the deceased reunited in about 1985. In 1986, she and the deceased took a trip together to America. She and the Plaintiff did not get on very well, and although she denied any dislike of the Plaintiff, it is clear that there is no warmth of feeling either. This led to contact with the deceased, usually, without the Plaintiff present. In the circumstances, it is unlikely that she made any contribution to the acquisition, conservation and improvement of the estate of the deceased. However, as his daughter, she did make some contribution to his welfare and happiness.

121 Mrs Lee has little recollection of the deceased when she was a child, as she was only five years of age when her parents separated. In fact, she had no contact with the deceased between 1954 and 1985. From 1985, she would be in contact with the deceased from time to time. She admits that her contact with the deceased was limited. In the circumstances, it is unlikely that she made any contribution to the acquisition, conservation and improvement of the estate of the deceased. However, as his daughter, she did make some contribution to his welfare and happiness.

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

122 The deceased made no specific provision, during his lifetime, or out of his estate, for the Plaintiff. However, the Plaintiff and the deceased lived in the Long Jetty property throughout their married life (except for the periods of separation to which I have referred). The Plaintiff has continued to live in the Long Jetty property since the deceased’s death.

123 The Plaintiff received $6,600 being the proceeds of the deceased’s superannuation. However, she paid $5,500 for the funeral expenses of the deceased from this amount and also from moneys in a joint bank account to which reference has previously been made.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

124 The Plaintiff acknowledged that the deceased told Mr O’Leary that the Long Jetty property would one day be his.

125 In about 1986, the deceased told Mrs Eccles that he wanted the Long Jetty property to go to his three children. This was prior to the deceased’s Will, the subject of the grant of Probate. On several occasions, the deceased told Mrs Eccles that he did not want to leave the Long Jetty property to the Plaintiff, because “he could not trust her to leave it to [the children] when she dies”.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

126 There is no evidence that the deceased maintained the Plaintiff, either wholly or partly, before his death.

(l) whether any other person is liable to support the applicant

127 Apart from the Commonwealth government’s responsibility to continue to provide the Plaintiff with a pension, there is no other person with a liability to support the Plaintiff.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

128 There is in evidence, a document dated 17 October 1989, acknowledged not to be in the deceased’s handwriting, but which was signed by him, which states:

“I have not included Fae Theresa O’Leary in my will dated 17/10/89 as a beneficiary for the following reasons:

(i) We were married in 1983 and she deserted me on 9/10/89 taking with her all of my household goods and chattels and without my permission.

(ii) I have owned the home at 59 Nirvana Street, Long Jetty since 1959 and fully owned the house well before the marriage to the said Fae O’Leary. She contributed nothing towards the acquisition of this asset.

(iii) She, ie. the said Fae O’Leary, has considerable funds invested, approx. $40,000 and therefore is well taken care of. This money was received from a m/v personal injury in 1986 during the time of our marriage”

129 In her first affidavit, the Plaintiff disclosed the document. She stated that “for the main part, particularly the last 15 years of their marriage, it was a very happy partnership”. She also acknowledged that “[I]n the early years, I did have some problem with [the deceased’s] drinking” and that they had separated for about 3 months. She acknowledged the “significant” disagreement in 1989, which she says was about a holiday the deceased planned to take to the United States. The Plaintiff disputes that she “deserted” the deceased. She admits that she took some household items, which were her own.

130 The Plaintiff also admits that she and the deceased separated for about 2 months in the early 1990’s. She says that the reason for the separation was, once again, the deceased’s drinking habits.

131 I accept the Plaintiff’s evidence that the reason for the two periods of separation came about as a result of the deceased’s drinking habits at that time. (Whilst the deceased’s children described the deceased as a “happy drunk”, Mr O’Leary referred to observing the deceased’s mood changing on occasions.)

(n) the conduct of any other person before and after the date of the death of the deceased person

132 It was not suggested that the relationship with any of his children had, in any way broken down. Each was a chosen object of the deceased’s testamentary beneficence. I have dealt with the relationship of each previously.

(o) any relevant Aboriginal or Torres Strait Islander customary law

133 This is not relevant in the present case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered

134 There is no other matter that I consider relevant.

135 Mr P Jeffries of counsel, who appeared for the Plaintiff, submitted that because of her financial and material circumstances, the Plaintiff should receive the whole of the deceased’s estate absolutely. In the alternative, and with less enthusiasm, he submitted that a Crisp order, in an amount that would enable the purchase of the one-bedroom plus sunroom (at least $190,000), in the Nareen Gardens, in which the Plaintiff could live together with a modest capital sum, which the Plaintiff would receive absolutely, would be adequate and proper. He submitted that the question of the costs of the proceedings should be dealt with after the parties had an opportunity to consider the reasons for judgment.

136 Ms L Hawkshaw, counsel for the Defendants, submitted that any provision for the Plaintiff should be made by way of life tenancy in the Long Jetty property only. She submitted that the Defendants could borrow an amount necessary to pay for the repairs to the Long Jetty property and the costs of the proceedings, which sum would be repaid when, or if, the Plaintiff moved from that property into care accommodation. She stated that the Plaintiff should not be permitted to move into the unit in the Nareen Gardens, as that might result in a capital loss to the estate, even if it was by way of a Crisp order.

137 She submitted that the deceased had wanted his children to inherit the whole of the Long Jetty property and that the competing claims of his children should not be forgotten. She also submitted that to provide the Plaintiff with a large capital sum will result in her beneficiaries benefiting rather than the beneficiaries who the deceased wished to inherit his estate.

138 I pointed out, during the argument, that the fact that the provision of a capital asset to an applicant may incidentally enable a Plaintiff, in due course, to pass that asset on to children, or family, contrary to the deceased's wishes is not determinative of the propriety of such a provision (Worladge v Doddridge (1957) 97 CLR 1 at 19). Ms Hawkshaw accepted this was so.

139 In the alternative, Ms Hawkshaw submitted that a Crisp order, in an amount that would enable the purchase of the one-bedroom plus sunroom (at least $190,000), in the Nareen Gardens, together with a very modest capital sum, which the Plaintiff would receive absolutely, would be adequate and proper. She, too, submitted that the question of the costs of the proceedings should be dealt with after the parties had an opportunity to consider the reasons for judgment.

Determination

140 There is no dispute that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(a) of the Act. It is, thus, unnecessary to consider whether there are any factors warranting the making of her application.

141 As the Plaintiff’s proceedings have been commenced within the time prescribed by the Act, the first question for determination is whether, at the time when the court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made, has not been made, by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased, or both.

142 There was no provision whatsoever in the deceased’s Will made for the Plaintiff. Having regard to the length of the marriage, her relationship with the deceased, her present financial circumstances, her age, as well as considering the totality of the relationship between the deceased and his children, I find that adequate provision for the proper maintenance or advancement in life of the Plaintiff was not made by the Will of the deceased, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. There was no dispute about this either.

143 It is then necessary to consider whether to make a family provision order and the nature of any such order.

144 In coming to a conclusion, I have considered the views expressed by the deceased in the 1989 document. That consideration was one of the matters critical to the case presented for the Defendants. The views of the deceased find specific expression in sub-paragraph (j) of s 60(2). Taking it at its highest, however, the document demonstrates a view that the deceased held 20 years before his death. With one other period of separation, again only for a few months, the deceased and the Plaintiff lived together as husband and wife from November 1983. This is not a case of a long-standing severance of the marital relationship. There is no evidence of any action, by the deceased or the Plaintiff, consistent with a decision to bring the marriage to an end.

145 Furthermore, whilst the court may consider explanations given by the deceased in the will for the omission of an applicant as a beneficiary, the explanations do not relieve the court from conducting the enquiry required by the Act. All the explanations may do is shed light on the relationship between the deceased and the applicant. It is that relationship which is important, not the fact that the deceased thought that it was appropriate to exclude an applicant. In some cases, the reasons given by the deceased may indicate that the deceased must bear part of the responsibility for the breakdown in the relationship between them: Slack-Smith v Slack-Smith [2010] NSWSC 625, per Ball J at [27].

146 I am of the view that, in the present case, I should not regard the reasons expressed in the 1989 document for excluding the Plaintiff, as determinative, or even significant. There may be cases where such reasons, whether made clear in the deceased’s Will, or otherwise, will be critical to the outcome of an application. This is not one of those cases.

147 I have also considered what the deceased said to Mr O’Leary and to Mrs Eccles about his testamentary intentions and what he provided for in his Will. The Act does not prevent the Court making a family provision order simply to enable effect to be given to the intention, or promise, of the deceased to provide for someone. Such a statement of intention may be a relevant consideration. Family provision legislation replaces what is regarded as the moral responsibility to provide for one’s family with a legal duty to make adequate provision for the proper maintenance, education and advancement in life of the applicant, albeit that the legal duty must be activated by an application for a family provision order: see, Pauline Ridge, --- "Moral Duty, Religious Faith and the Regulation of Testation" [2005] UNSWLaw Jl 43; (2005) 28(3) University of New South Wales Law Journal 720.

148 I have also considered the factual matters stated above to which I have referred under the headings stated in s 60(2).

149 There was no dispute that I should make a family provision order in favour of the Plaintiff. The Plaintiff is in receipt of a pension. She has virtually no assets. To enable any provision to be made for her, and pay costs, the Long Jetty property will probably have to be sold.

150 It was submitted that the Defendants could obtain a mortgage to satisfy any order made in favour of the Plaintiff. However, as I pointed out during submissions:

(a) The amount that might have to be borrowed, simply to pay costs, would be, on present estimates, $90,000. In addition, at least another $15,500 would have to be borrowed to carry out the repairs to the roof. Other repairs to the Long Jetty property might also be required, at additional cost.

(b) The amount required to be borrowed would be increased further if any capital amount was provided for the Plaintiff;

(c) There is no evidence of who would make the repayments required if a mortgage were obtained. There is otherwise no income of the estate.

(d) This course would require the Plaintiff to remain living in the Long Jetty property when she has made it clear that it no longer suits her requirements and that she feels that she is now unable to live alone.

151 I have also borne in mind that Mrs Eccles and Mrs Lee appear to be in secure circumstances and in no immediate need of financial assistance. Whilst Mr O’Leary is in need of financial assistance from the estate, I do not think his immediate need is for a large sum to provide accommodation. As I have said, he has lived in the same rented accommodation for the last 22 years. The orders that I propose to make, may, in any event, provide him with some capital to enable him to discharge his credit card debts and attend to the dental work that he and his wife require.

152 I am of the view that I should make an order in favour of the Plaintiff. She should receive, by way of provision, out of the estate of the deceased, an order in the nature of a Crisp order, in the amount of $190,000. That amount is the sum required to purchase the one bedroom plus sunroom unit in Nareen Gardens. The costs associated with the purchase, including stamp duty, if any, payable on the contract for the purchase, and all legal costs thereof should be paid out of the estate. The unit should be held in the name of the Defendants as trustees.

153 The Plaintiff should choose the one-bedroom unit which best suits her. The proceeds of sale of that one bedroom unit, less any capital loss (estimated at no more than 30%) should be available to satisfy any costs and expenses of the following phase of the Plaintiff’s life, namely movement from that unit to other nursing, or similar type, accommodation, until the Plaintiff’s death.

154 It follows that the Defendants may enter into a contract for the purchase of the unit, or enter into any other agreement, which might include a clause with the effect be that there will be a capital loss of 30% over 5 years.

155 In addition, the Plaintiff should receive a lump sum of $10,000, absolutely, for exigencies of life. That amount should be for her benefit to be used as she sees fit. The balance of the estate, if any, up to $25,000 should be retained to provide capital and/or income to pay any expenses of the unit, unless the parties otherwise agree, in writing that such sum is not required. The capital may be used, if necessary, to pay any amount required which cannot be met from the income.

156 The balance of the estate, if any, after the payment of the legal costs ordered to be paid, should be distributed to Mr O’Leary as part of the share of the estate to which he is entitled.

157 The burden of the provision for the Plaintiff should be borne by the residuary estate. (In this regard, there was no application that the burden of provision should be otherwise.)

158 Of course, if the Defendants can raise the amount necessary to discharge the orders for provision and any costs orders, then the parties can agree that the Long Jetty property does not have to be sold. However, if this course is to be followed, the orders must be satisfied within 1 month of the date upon which final orders are made, or within such other time as the parties agree. If the orders are not able to be satisfied within that time, then the Long Jetty property must be immediately placed on the market for sale.

159 The parties should include, in short minutes, the reservation of further consideration in the event that there is any difficulty implementing the orders proposed and a declaration that the court is satisfied that it is unnecessary to serve a prescribed notice on Alice Irene Shaw, the first wife of the deceased. An order for the return of the exhibits and the Court Book should also be included.

160 I shall stand the matter over to enable them to reach an agreement on the form of orders. If agreement can be reached on costs, then provided the costs orders do not impact upon the provision made for the Plaintiff, I shall be content to make them. Otherwise, I shall hear any argument on costs at the time the orders are to be made.

161 I should remind the parties, on the question of costs, of Clause 24 of the Family Provision Practice Note (Practice Note SC Eq 7), which provides:

“Orders may be made capping the costs that may be recovered by a party in circumstances including, but not limited to, cases in which the value of the estate is less than $500,000.”


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