Perkins v Burke

[2003] NSWSC 1167

CITATION:	Perkins v Burke [2003] NSWSC 1167
HEARING DATE(S):	04/12/2003
JUDGMENT DATE:	4 December 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Family Provision. Application by adult son rejected by his mother at birth. Consideration of circumstances. Legacy in favour of plaintiff.
PARTIES :	Garry John Perkins v David Burke
FILE NUMBER(S):	SC 5636/2002
COUNSEL:	Mr J.S.Drummond for plaintiff Ms D. Coulton for defendant
SOLICITORS:	Peter Dawson & Associates Vizzone Ruggero & Associates

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 4 DECEMBER 2003

5636/02 - GARRY JOHN PERKINS v DAVID BURKE - ESTATE OF BETTY MAY COWLE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the Estate of the late Betty May Cowle, who died on 24 June 2002 aged sixty-seven years.

2 The deceased was survived by her de facto partner, the defendant, and her only son, the plaintiff. By her will made on 30 January 2002 she left the whole of her estate to the defendant and appointed him executor. Her estate consisted of a property being Unit 12/4 Banksia Street, Botany and cash of about $28,000.

3 The parties are agreed that the present net distributable estate, after allowing for funeral and sale expenses, is in the sum of $220,000.

4 The unit had been transferred to the defendant as a beneficiary and he has received about $22,000 in cash from the estate. He has also received the net rent from the unit in the order of $120 per week. The estimates of costs in this matter put the plaintiff’s costs at $22,234 and the defendant’s at $25,000. This would leave an amount of some $175,000 available for distribution if an award is made in favour of the plaintiff.

5 I will deal with a little of the family history. The plaintiff was born on 12 January 1959 and the defendant on 24 November 1944. At an early stage the plaintiff was left by his mother with family friends, first, the Clarksons in Waterloo, and then at Revesby and eventually the plaintiff in the early 1970s went to live with his grandparents at Bankstown.

6 In January 1980 the plaintiff was twenty-one years of age and it was the first contact that he had from his mother, the deceased, since the time when he was a baby and effectively had been abandoned by her. The plaintiff established contact with his mother and met her and over the following year had various meetings with her.

7 In about 1983 the deceased had met David Burke and apparently the contact between the plaintiff and the deceased ceased shortly prior to that, until 1991. It was in 1984 that the defendant and the deceased commenced their de facto relationship. They commenced to reside together at Picnic Point in a Housing Commission flat for some months and eventually came back ultimately to a flat in Brighton Boulevard, Bondi Beach which is rented and in which they lived until the death of the deceased. The defendant still at the moment resides in that flat.

8 In 1986 the plaintiff left his grandmother’s home to live with Julie Hermon, whom he married on 24 February 1990. In 1991 the plaintiff’s wife re-established contact with the deceased and this led to a happy reunion between the plaintiff and the deceased. There was regular contact for quite some time and according to the plaintiff he said several times a month with the occasional overnight stay.

9 In 1995 the plaintiff was retrenched from his full time employment and had to seek other employment to which I shall refer later. His father started to live with him in 1996 when he and his father purchased a property between them. The plaintiff only had $3,000 to contribute towards legal expenses and, accordingly, the property was bought in his name and his father’s name and borrowings were made in order to enable the plaintiff to finance his share. Although no doubt the mortgage was given by both the owners the plaintiff assumed liability for the whole of the mortgage and made repayments thereafter.

10 In 1996 the plaintiff commenced work as a private investigator.

11 In 1997 there was an event which again broke down the relationship between the plaintiff and the deceased. The plaintiff did not call his mother on Mothers Day and late that evening she rang him and abused him for not having called her. He apologised and said he had only just got back from work. There is no reason not to accept the plaintiff’s explanation of what happened.

12 The plaintiff tried to re-establish contact in 1997 at Christmastime when he rang up his mother to see if she would like to see the grandchildren and she completely rebuffed that approach by the plaintiff.

13 In 1998 the deceased inherited what was her husband’s unit at Botany, ie, the property which is part of the estate. According to the plaintiff in the year 1999 at least for a while, he sent photographs and cards with contact details to the deceased. Although the defendant says he had the key to the mail box and cleared it, it may well be that these were received by the deceased, but after awhile, according to the plaintiff, they were returned to him.

14 It was on 30 January 2002 the deceased made her will and she died on 24 June 2002. On 6 August 2002 probate was granted and by this stage the defendant was aware that there was a claim by the plaintiff. The summons was filed on 3 December 2002 and in that month the defendant bought a property at Hill End for $85,000. He and the deceased had always intended to retire to Hill End by borrowing some $95,000 for the mortgage. Apparently it had been transferred to him shortly prior to this and, as I mentioned, it was transferred to him as a beneficiary.

15 The hearing was before me today and has been dealt with during the day.

16 The plaintiff clearly is an eligible person as there is no dispute that he is the son of the deceased. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take. At page 209 it said:

“The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance, and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

17 I have to consider the plaintiff’s position. The plaintiff is forty-four years of age, married with three dependent children who are aged six, seven and eight years. Regular employment has ceased and he is working as a private investigator and recently labouring installing and completing the manufacture of windows. His income for the year ended 30 June 2002 was $29,420, and for the financial year ended 30 June 2003 it had dropped to $10,411. He is uncertain about his future income, apparently because the window work depends on the availability of the work and there is some doubt whether he can get sufficient work as a private investigator.

18 His wife works in a store and her income for the year ended 30 June 2002 was $7,906, and for the year ended 30 June 2003 was $22,923. It is apparent they cannot make ends meet due to the plaintiff’s decreased income and the need to meet the mortgage on the home that the plaintiff and his father own jointly. It was purchased in 1996 for $125,000 and the mortgage which the plaintiff has assumed responsibility for is about $87,000. The weekly repayments are about $160 per week. He has fallen into arrears at times in making payments under the mortgage and he has had to make an arrangement to pay his tax debt by instalments.

19 Apart from the half share he may have in the home at 43 Paul Street, Mount Druitt, he has a 1996 year model car worth $3,000 and about $1,000 worth of NRMA shares. He and his wife also have their furniture. He has a liability to the Tax Office of $7038.00 and a MasterCard of $7,000. His father lives with them in a granny flat and if the home is sold he will have to rent a home somewhere. This would hardly be likely to improve his income situation.

20 The evidence does not disclose what the value of the home is if it was sold, although the asking price is $430,000. That is, however, no evidence of value.

21 There is no evidence of contributions to the estate of the deceased by the plaintiff.

22 The limited contact between the plaintiff and the deceased raises questions as to whether it is appropriate to make provision for the plaintiff. S 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person:

“it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

23 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted:

“This conclusion directly raises the question of whether the word ‘ought’ in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...

It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.

The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] APPLICANT 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that ‘many cases suggest that an applicant must show a moral claim ... ‘, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into s.7 of the present Act of the word ‘ought’ in replacement of the words from s.3 of the 1916 Act ‘as the Court thinks fit’ shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person with in par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

24 Meagher JA (NSWLR at 570) agreed with Priestley JA.

25 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal, unreported, 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case:

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the ten years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.”

26 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

27 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490; see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.

Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

28 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes there is no reason to distinguish able-bodied adult females. In the course of doing so his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

29 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

30 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children wee legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

31 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs -

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature age and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ... “

32 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case in the context of the earlier High Court and House of Lords decisions noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case, a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this Court, in the Court of Appeal and in the High Court. The majority of the Court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that ‘we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to ‘moral duty’ or ‘moral obligation’, may well be understood as amounting to a gloss on the statutory language’. They then say ‘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 et cetera appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

33 Young J also observed:

“In Fraser’s case, Kirby P at p29 said that ‘I do not consider that it would be safe for this Court, or other courts in this State, to disregard the obita dicta in Singer v Berghouse concerning ‘moral duty’. However, his Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).’

Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.

Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy J at p42 ‘the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The Courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in Re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.’”

34 In Walker v Walker (p27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. ... “

35 It seems to me that the formulation of Young J is sufficient and appropriate to guide me in determining these matters.

36 The plaintiff was clearly abandoned by his mother. She had no other family to look after and only re-established contact with the plaintiff when he was twenty-one years of age. There was contact for a period of a year but it dropped away as the plaintiff found it difficult. There was a lack of contact after 1984 when the deceased had started living with the defendant.

37 It was re-established in 1991 and I accept from the plaintiff’s evidence that there was reasonably frequent contact until Mothers’ Day in 1997. There is no reason not to accept the plaintiff’s version of what happened on Mothers’ Day. His mother seems to have been precipitous and a late Mothers’ Day call is not something which would normally bring about a break in the relationship between the mother and the son. It might cause some difficulties but one would hardly think it would lead to a break in the relationship.

38 Importantly, the plaintiff tried to establish the relationship again with the deceased at Christmas when the deceased, quite surprisingly, I think, rebuffed the plaintiff again. There is evidence that he tried to send cards and photographs and these may well have got through and, given his evidence which I am prepared to accept that some were returned then no doubt he had tried to make further contact.

39 Given these attempts to re-establish contact I do not think the plaintiff’s entitlement should be refused because of his lack of contact after Mothers’ Day 1997. However, one thing needs to be observed and that is that the period of the relationship between the plaintiff and the deceased was short and not as intense as if it had been a full relationship in which the mother had brought up her child.

40 The actual fact of the shortness in contact is a relevant factor to consider when looking overall at what proper provision should be made. Certainly it may be the fault of the deceased but it still does not detract from the fact that the Court must consider the relationship in a far lesser light than if it had been a full relationship in the ordinary sense.

41 The plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. The actual matters put forward on his behalf relate to his current financial situation. What he really needs to do, if he is able to keep his home, is make some substantial reduction off the mortgage. Unless he can do this he will lose the home with the consequent impact on his family’s life and their future prospects. If he is able to have some small capital sum to reduce his mortgage that would be appropriate.

42 It is necessary to look at the position of the defendant. The defendant is fifty-nine, single, and he has no dependents. He is working as a storeman at the moment and his net wage is some $600 a week and he is receiving rental of $120 per week. There is absolutely no evidence of what his expenses are apart from the fact that he pays rent of some $220 per week. He has as an asset the property at Hill End worth about $85,000. He has also superannuation of $8,000 and owes $95,000.

43 His medical situation is not good. He has had heart problems some years ago and has had procedures, I think, for a shunt. He seems to be reasonably stable in his recovery. The last time he was to go into hospital was about eighteen months ago. He wants to stop work next year when he turns sixty. He then anticipates going on a pension and living at Hill End.

44 True it may be a matter of choice for him to stop work at sixty, but I would not be critical. He is quite entitled to do so and, if as he says, he does not enjoy work and finds it is not good for his health it would be of benefit for him to retire.

45 It is necessary to consider the relationship between the defendant and the deceased. There is nothing in the evidence to suggest it was not a happy relationship for both the parties. The evidence also suggests that the deceased had cancer from about 1997 on and no doubt there was quite a deal of assistance that the defendant had to provide for the deceased from that time until her death.

46 One also has to look at the contributions to the estate of the deceased. In this case, of course, there are no contributions by the defendant to the estate. The estate basically comprises the unit that the deceased received before she died. That was a unit belonging to her husband, to whom she was still married, the relationship with him having finished some many years ago apart from the occasional contact.

47 The defendant has already had some benefits from the estate. He has had $22,000 in cash, and about $9,600 in rent since the date of death.

48 It is necessary to look at what might be an appropriate provision for people in the position of the defendant, not because they have to establish their entitlement, but it allows one to consider what is proper.

49 In Marshall v Carruthers (2002) NSWCOA 47, Hodgson J had this to say:

“The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69:
‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her 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.’

I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is, of course, absent here.”

50 Bearing in mind his Honour’s comments there are a number of things to note about it. First, it is a reasonably lengthy relationship, namely, nineteen years. There were, however, no children of the relationship and accordingly one does not have a situation with the parents struggling to contribute to educating and bringing up their children.

51 Importantly also in this case, the defendant has not in any sense contributed to the estate of the deceased or helped with it. But credit has to be given to the defendant in the circumstances for the care he gave to the deceased in later years.

52 The defendant appears happy to settle down on the pension and presumably will be able to cope on the pension. He and the deceased wanted to retire to Hill End, as I have said, and he wants to be there because it is far cheaper and presumably because of other personal reasons. He has recently spent $9,000 in repairs to the home.

53 It is clear, of course, that the unit has to be sold. There are no plans that the defendant has put forward that he would have for the proceeds of sale. The plaintiff, on the other hand, is in substantial need and he needs some sum to at least reduce his mortgage and assist him. He faces a potentially disastrous situation in losing his only asset in life.

54 In those circumstances I think it is appropriate that there be some legacy for the plaintiff. Under s.24 of the Family Provision Act the Court may designate property which has been distributed as notional estate if it is satisfied that an order for provision ought to be made on the application and the property is held as a result of the distribution. Clearly, I am satisfied that the provision should be made and properly has been held, namely, the unit which is now in the name of the defendant.

55 S.27 of the Family Provision Act provides as follows:

“(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances.”

56 As can be seen from that section, there are a number of things the Court has to consider. The first is the importance of not interfering with reasonable expectations in relation to property. Here, of course, the distribution to the defendant was made well before the eighteen months period expired. In those circumstances, he was clearly taking a risk and he knew that the application was to be made. Accordingly, I do not think there are any reasonable expectations and certainly there is nothing that he has done in reliance upon any promises. There is no evidence of promises by the deceased.

57 The Court has to consider the substantial justice merits involved in making or refusing to make the order and these I have canvassed under the appropriateness of the provision in discussing the matter earlier. There are no other particular matters that are relevant to the matter.

58 Accordingly, the orders that I make are as follows:

1. That the plaintiff shall receive a legacy out of the notional estate in the sum of $65,000.
2. I designate that the property Unit 12/4 Banksia Street, Botany be notional estate.
3. I order that the plaintiff’s costs on a party/party basis and the defendant’s costs on an indemnity basis be paid or retained out of the notional estate.
4. I order the exhibits be returned.

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Last Modified: 12/11/2003