Parsons v Lake

[2001] NSWSC 572

CITATION:	Parsons v Lake [2001] NSWSC 572 revised - 6/07/2001
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2109/2001
HEARING DATE(S):	26/06/2001
JUDGMENT DATE:	26 June 2001
PARTIES :	Charles Leonard PARSONS v Allan Thomas LAKE
JUDGMENT OF:	Acting Master Berecry at 1

COUNSEL :	L. Ellison - plaintiff P. Dowdy - defendant
SOLICITORS:	Carroll & O'Dea - plaintiff Gibson Owen Lawyer, Inc - defendant
CATCHWORDS:	Action brought by plaintiff the widower of hte deceased - relationship began in 1960's - lived as de facto until 1980's when they married - harmonious marriage of 14 years - contributed his salary, and later pension and superannuation entitlements to the relationship although did not make a capital contribution to the purchase of the unit they lived in - surviving spouse should be provided with security of accommodation.
LEGISLATION CITED:	s 7 of the Family Provision Act, 1982
CASES CITED:	Paton v The Public Trustee, unreported, Young J, 8 December, 1988
DECISION:	Refer paragraphs 26 - 29.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ACTING MASTER BERECRY

TUESDAY, 26 JUNE 2001

2109/01 - CHARLES LEONARD PARSONS v ALLAN THOMAS LAKE

JUDGMENT

1 MASTER: This is an application brought by the plaintiff pursuant to s 7 of the Family Provision Act. The plaintiff is the widower of the deceased Gwen Parsons who died on 14 August, 2000.

2   The evidence before me is that the deceased and the plaintiff had known each other for a long period of time. They first met in the early 1960s, according to the evidence of the plaintiff. Their relationship as friends over time grew and by 1970 to all intents and purposes they were living as man and wife.

3   The plaintiff had commenced residing with the deceased during the 1960s but they had maintained separate bedrooms. When the deceased's youngest child had reached a certain age, the plaintiff and the deceased then commenced sleeping together. By that stage, therefore, they had conducted their lives in a way which had all the appearances of a de facto relationship.

4   The evidence is that they continued in that relationship until the mid-1980s. During that earlier period the plaintiff had changed jobs; they had resided in rented accommodation and, in 1970, the deceased purchased the unit at West Ryde. The evidence this morning is that the plaintiff made no financial contribution to the purchase of that unit. The parties moved into that unit and continued to reside there up until their marriage and they occupied the unit until the deceased died. The plaintiff still occupies the unit.

5   Under the terms of the will the deceased gave the plaintiff a right to reside in the premises. Paragraph 5 of the will makes provision, inter alia:-

"Permit my husband Charles Leonard Parson to use it as his residence,"

that is the Unit 5, 40 West Parade, West Ryde property,
"for as long as he wishes, subject to his paying council rates, water rates, strata levies and keeping the property in good repair."

The West Ryde unit was their home throughout the entirety of their marriage. It was their home throughout the major portion of their de facto relationship.

6   There is evidence from the plaintiff that whilst he did not make a capital contribution to the purchase of the West Ryde property during the course of their relationship, he did provide assistance to that relationship by way of his fortnightly salary and in later years his pension and termination pay or superannuation entitlements. All those moneys went towards funding the relationship.

7   There is no evidence to suggest that this was anything but a happy, harmonious marriage and relationship. The parties went on holidays. There is evidence that there was a good relationship between the deceased, the plaintiff and the deceased's children.

8   There is little evidence put on by the children of the deceased as to their means. The executor, who was the son of the deceased, has put on one affidavit. Mr Dowdy has referred to the position of the executor. It is one, Mr Dowdy says, that whilst his position is not one of great need, it is nevertheless one that is modest.

9   The other two children of the deceased have put on evidence which goes to what was seen or understood to be the intention of the deceased in relation to the property. There is no evidence in relation to their assets and liabilities or that of their spouses. There is authority which says in such a case that it can be taken that the beneficiaries, therefore, have no need.

10   The provisions of the will, aside from the right of residence, give pecuniary legacies to a number of people. That is set out in paragraph 5. They are, excluding the plaintiff, the step-sons and grand-children of the deceased. There are specific legacies set out in paragraph 3 dealing with the jewellery of the deceased.

11   The estate is only a small estate which is, perhaps, unfortunate. On the one hand, there is a relationship which was a long and harmonious relationship. The marriage itself was 14 years, which is certainly today a medium-range marriage. Relationship was one that extended over 35 years. As I have already said, there is no doubt that it was anything but a happy and harmonious relationship.

12   The authorities state that in such a situation where there is an estate which can make provision, then the surviving spouse should be provided with the security of accommodation, at least a small capital sum and further provision for contingencies.

13   This estate is a small estate. The value is approximately $230,000. The major asset in the estate is the unit. For the purposes of today, it was agreed that the appraisal obtained by the defendant would be regarded as an appropriate value; that market appraisal was a value somewhere between $210,000 and $220,000. The rest of the estate consists of moneys held in the Commonwealth Bank which currently stand at $32,340.11, some jewellery, furniture and personal effects. A value was attributed to the jewellery and whilst that value was $10,000, it has now been reduced to $2,052.

14   Mr Dowdy has raised the question of the age of the plaintiff and his health. One of the difficulties faced by the Court these days is the product of second marriages, that is, what is to happen to the assets of the estate of the deceased person. In large estates the problem is not so great. In small estates it is very acute. Not unnaturally, the deceased wished to make provision for her own children. The authorities, however, give precedence to a surviving spouse. That, however, is not unlimited. If it was a marriage of short duration or if it was an unhappy marriage, then the normal provisions do not apply. Where the surviving spouse has either remarried or entered into a de facto relationship, where accommodation is provided by the new partner, then the authorities do not apply to the full extent.

15   It is true that the plaintiff is an elderly man. He is eighty-one. There is evidence that he suffers from ill-health. There is evidence from a doctor that he is on 19 different medications. In cross-examination Mr Dowdy put that to him. He corrected that and said he is now on 22 different types of medication. It is clear that he is not as healthy as a man half his age. Nevertheless, he gave evidence that he is able to care for himself, provide for himself and that he is mobile. He is able to leave the unit and attend to his affairs without a great deal of difficulty. In the medical report, which was marked Ex A, the doctor notes under "Social History" under the heading "Other Issues":-

"He lives in a unit with 30 easy steps and manages cooking and shopping by himself."

The report was a report prepared in May of this year.

16   It seems to me that notwithstanding the medical problems that the plaintiff has, he is, for an 81-year-old man, able to enjoy a lifestyle that he wishes to maintain.

17   The other side of the coin is that the testatrix had made abundantly clear her testamentary intentions as expressed in the will. She wanted the West Ryde property to go to her children.

18   There has been submitted that an order in the nature of a Crisp order should be made for this plaintiff, firstly, because of his age and, secondly, because of his health. Crisp orders have fallen out of favour of the Court. There is also an element of an entitlement of a party to be able to control their own affairs and to live out the rest of their life as comfortably and as independently as they can. This is a view that has been expressed in this Court on a number of occasions.

19   One difficulty is that for provision to be made by way of a capital sum out of the estate for the plaintiff, that provision would then take away the lifestyle that not only he enjoys at the present time but one that he enjoyed for many years with the deceased. It would force him to find accommodation which he does not want, whether it be independent living somewhere else in the West Ryde area or in a retirement village.

20   In my view an appropriate order is that provision should be made out of the estate for the plaintiff to the extent that the property at West Ryde be transferred to him.

21   The provision in the will that he receive a legacy of $10,000 should not stand.

22   It is clear that there is a sum of approximately $32,000 available to the beneficiaries.

23   The legal costs are somewhere in the vicinity of $30,000.

24   This is not an estate of the type that Young J had to consider in Paton v the Public Trustee (Unreported, Young J, 8 December 1988). This estate cannot make provision for the plaintiff to the extent that his Honour referred to in that case, that is, accommodation plus a capital sum.

25   The plaintiff receives a Services pension of $407.80 per fortnight. As an ex-serviceman he would also be entitled to a number of other benefits. It would seem to me that the plaintiff is able to provide for himself, either by the pension or as a result of his war service. Therefore, the legacy that was provided for him under the will should not apply.

26   I make provision that, in lieu of the provision in the Will of the deceased, the plaintiff receive the property known as 5/40 West Parade, West Ryde.

27   I make no other provision for the plaintiff.

28   I note the agreement that the plaintiff undertakes to return the items that are set out in a fax dated 20 February of this year, acknowledged by his solicitor on 26 June of this year.

29.In relation to costs, the plaintiff's costs be paid on a party/party basis out of the estate. The defendant's costs be paid on the indemnity basis out of the estate.

Last Modified: 07/09/2001