Pert v Norris-smith

[2007] NSWSC 1427

CITATION:	PERT v NORRIS-SMITH & ANOR [2007] NSWSC 1427
HEARING DATE(S):	26, 27 & 28/11/2007
JUDGMENT DATE :	11 December 2007
JURISDICTION:	EQUITY
JUDGMENT OF:	Bryson AJ at 1
DECISION:	Summons dismissed.
CATCHWORDS:	FAMILY PROVISION - de facto relationship over 20 years - testator by will left plaintiff half proceeds of sale of house and also furniture and personal effects - also half share proceeds of insurance - assets about $1,009.000 - residue to 4 adult daughters of testator - plaintiff received assets worth about $40,000 and entitled to $310,000 from sale of house - aged 63 suffering dementia and other disabilities, Age Pension. Medical evidence showed need for hostel care, entry bond $180,000 - HELD provision adequate, application refused.
LEGISLATION CITED:	Family Provision Act 1982, ss 7 and 9
CASES CITED:	Luciano v Rosenblum [1985] 2 NSWLR 65 Marshall v Carruthers [2002] NSWCA 47 Permanent Trustee Co. Ltd v Fraser (1995) 36 NSWLR 2446
PARTIES:	Helen Mary Pert - Plaintiff Penelope Anne Rhoades (previously Norris-Smith) - First Defendant Cassandra Jane Herbert - Second Defendant
FILE NUMBER(S):	SC 4551/2004
COUNSEL:	Ms A. Cotter-Moroz - Plaintiff Mr C. Harris SC - Defendants
SOLICITORS:	G.A. Guthrie (Woolgoolga) - Plaintiff Clinch Neville Long - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Tuesday 11 December 2007

4551/2004 HELEN MARY PERT v PENELOPE ANNE NORRIS-SMITH & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff claims further provision out of the estate of the late Brian Ashton Rhoades, under ss 7 and 9 of the Family Provision Act 1982. He died on 29 November 2003 and this Court granted probate of his will to the defendants on 15 April 2004.

2 The plaintiff and the testator lived together, first at 11 Kinka Road Duffy's Forest and later at 3 Arrawarra Road, Mullaway, New South Wales, in a de facto relationship from a time not exactly established, probably in the years 1981 to 1984, and the relationship continued until his death. They were never married to each other. Their relationship was a domestic relationship and the plaintiff is an eligible person within the definitions in s 6(1). There were serious strains and deeply felt and strongly expressed grounds for dissatisfaction on the part of the testator with the relationship. In the last months of the testator's life there were indications and statements of a wish on his part to end the relationship, but no definitive event brought the relationship to an end. The relationship brought with it an obligation of the testator to make adequate provision for the plaintiff’s maintenance and advancement in life; the testator recognized this by making substantial provision for the plaintiff in his will, although he expressed dissatisfaction with legal advice that he should do so. The plaintiff's claim must pass the tests in s7 and s9 of the Family Provision Act. In accordance with s 9(2) I am not to make an order under s 7 unless satisfied that the provision under the will is at the present time inadequate for the proper maintenance and advancement in life of the plaintiff. In making this determination I am to have regard to the matters in subs 9(2). I am only then to proceed to the issue stated by s 7.

3 Observations in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69 by Powell J state the general approach of the court to an application by a widow. There are significant qualifications. In Marshall v Carruthers [2002] NSWCA 47 at 63 to 65 Hodgson JA said:

[63] 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.
[64] 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.
[65] 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. …

4 Hodgson JA. went on to make some observations about applications by widowers, which are not presently important. At 74 Young CJ in Eq. said:

[74] Powell J’s broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.

5 Brian Ashton Rhoades was born about 1932. He served for many years in the New South Wales Police Force but retired at the age of 45 in or about 1977, it would seem for disability; and received superannuation. After retiring from the Police Force he worked in the security industry, in several employments including responsible positions. For many years he and his wife Nancy owned the house at Kinka Road Duffy's Forest. They were divorced and that house was sold in or about 1987, to give effect to a division of property. The plaintiff and the testator then moved to live at Mullaway, a village near Woolgoolga, where he had bought land at 3 Arrawarra Road Mullaway. Over some years he improved this land by erecting first a shed, later a house, and by carrying out improvements so the property could be used to conduct a wholesale wildflower nursery.

6 While living at Mullaway the testator at one time worked as professional fishermen, and owned a boat for this purpose. He also carried out a development venture, relating to two villas at Safety Beach (or Park Beach) and four units at Coffs Harbour. In 1992, when he was 60 years of age, he redeemed his police superannuation rights for a capital sum. He spent some of this on the construction of the house at Mullaway, and some in conducting the wholesale wildflower nursery. From about 1992 or perhaps earlier until about 1997 a wildflower nursery business was conducted on the property at Mullaway. This involved the plaintiff and the testator in considerable hard work. The plaintiff was not willing to acknowledge in evidence the extent of the testator's work or the value of his use of machinery, but I am satisfied on evidence other than hers that he worked very energetically and very hard and to good effect in the business, for which he acquired and operated machinery, and he also worked on machinery maintenance. There was also much hard work by the plaintiff in this venture. However it was closed down in 1997. The testator and not the plaintiff took the responsibility for maintaining the books and accounts, dealing with accountants and meeting outside responsibilities such as preparing accounts and lodging tax returns; the land and the venture were wholly owned by him. He stated in various ways, borne out by accounting documents, that the venture was not profitable, and accounting records for the last two years show operations at a loss.

7 About 1997 the testator wound up his interest in units and villas and sold them. He rearranged his affairs so as to make a superannuation investment and also be eligible for a Part Age Pension. At about the same time the plaintiff began to receive Social Services payments as Partner or Carer for the testator. The plaintiff suffered the first of a series of strokes in December 1999. After December 1999 when she became disabled she began to receive Social Services benefits relating to her disability, and she now receives an Age Pension. Since 1997 Social Services benefits of one kind or another have been her source of income.

8 The testator is survived by four adult daughters, each of whom has children. In his will of 22 August 2000 he appointed two of his daughters to be his executrices; they are the defendants. His will gave significant benefits to the plaintiff. Clause 3 gave her the right to reside in the property at Mullaway for 12 months from his death "being responsible for maintenance of the property but not for any rental, rates or insurances", gave her "all household furniture and effects" but excluding some special items, and gave her one half of the net proceeds of the sale of the house property after deducting all agents’ expenses and legal expenses consequent on the sale. He gave all the rest of his property to the executrices on trust to convert it into money; all debts, funeral and testamentary expenses and duties were to be paid out of this fund and the balance was to be divided equally among his four daughters (if they survived him, which they did.)

9 The inventory of property for probate purposes valued the testator's property at $1,008,661.00. As well as the house at Mullaway (valued for probate at $550,000) and household furniture and effects (valued at $10,000) the assets were land at The Boulevard Mullaway which the executrices valued at $220,000. This has not yet been sold. Plant and machinery were valued at $25,000, two accounts in BananaCoast Community Credit Union totalled $140,000 and a superannuation benefit in Connelly Temple Public Superannuation Fund was valued at $60,661. There was also a motor vehicle valued at $3000. The household furniture and effects and the motor car (probate values total $13,000) have passed to the plaintiff. The Superannuation Fund disputed payment of the superannuation benefits, this dispute was settled and the plaintiff was entitled to $27,559.03, half the settlement money. This was paid into her solicitor’s trust account on 30 June 2005 and after the solicitors had paid various charges and disbursements $17,559.03 was paid into a Commonwealth Bank account in the name of the plaintiff. The explanations the plaintiff gave for what happened to this fund were extremely improbable; that it would have been for furniture storage. The Mullaway house was sold by the defendants, with the concurrence of the plaintiff who gave up possession before the 12 months expired. The sale of the house was completed on 13 July 2004 and the proceeds after expenses were $531,741.40. The proceeds have been held in a separate investment account and have earned interest. The balance of the proceeds with interest at the time of the trial was $630,595.34. Although an exact calculation is not available income tax is in the order of $10,000 and the amount available is about $620,000 of which the plaintiff is entitled to $310,000. The other half is part of distributable residue. Other significant assets in the estate now are a term deposit with BananaCoast Credit Union estimated now to be $60,500 and the unrealised land at The Boulevard Mullaway.

10 The plaintiff's solicitor has stated on affidavit an estimate of the costs of these proceedings; his estimate is not exact but appears to me to be about $80,000. The defendants’ solicitor has made estimate on affidavit of the total costs of these proceedings paid and unpaid at $120,676.00. He has also given estimates of estate liabilities which have not been met, for capital gains tax $19,000 and estate administration $5,000.

11 The most important circumstances calling for my consideration relate to:

1. The plaintiff’s need for provision;
2. Evaluation of the quality of the relationship.
3. The claims on the testator's bounty of his four daughters;

12 Much evidence was directed to evaluation of the quality of the relationship. In my view this is less pressing than evaluation of needs.

13 On 28 August 1997 about three years before he made his will the testator wrote careful notes about his affairs and the provisions of his will, headed "An explanation of finances and like matters to the information of executors of my estate". He made more notes on the day he made his will and headed them “Further information relevant to any challenge to my will.” He left his notes in the care of the solicitors who prepared his will, and the solicitors handed them to one of his daughters who had power of attorney a few days before his death.

14 Some things in the notes have been corroborated in various ways. Complaints and dissatisfaction expressed in the notes at some points reflect complaints which the testator made to persons who have given evidence, principally his daughters. To my reading the terms of the notes show moderation and care in their composition, and they are not like the diatribes one sometimes sees left by testators to explain making no provision for some person who might otherwise be thought to have a claim. I regard them as reliable. It is important that as well as making these notes, the testator made provision for the plaintiff in his will under which a significant proportion of the money value of his assets passes to the plaintiff. His notes show that the testator was aware that contributions made by the plaintiff to his resources were a relevant matter.

15 The testator says in his notes dated 28 August 1997 that during the whole period the plaintiff lived at 11 Kinka Road she contributed towards food only. Other evidence shows that at this time the plaintiff had a job in the City working to the Shell company, and hence had income of her own. In her evidence the plaintiff disputes his statement and says that she contributed money from her wages towards work which the testator carried out on the house at Duffy's Forest.

16 The testator says that he acquired the land at Arrawarra Road, Mullaway with a mortgage from the Police Credit Union and that he paid it off for many years, and discharged the mortgage on selling the house at Terrey Hills from which he received about $180,000. He says that the plaintiff and he moved to Mullaway in December 1987 and from that time the plaintiff made no financial contribution towards any costs of living until she received the Department of Social Security Partner Allowance in August 1997.

17 The testator says of the plant nursery: “The business never made a taxable profit. I made the injections of funds into this and property improvement. [The plaintiff’s] name was on the nursery licence in later years, but she was never a partner by way of tax records etc. She put a lot of effort and manual labour into this. Over part of this activity, until age 60 years, my police pension went into the operation, as well as any other monies I had. [The plaintiff] received benefits from her efforts by way of a lifestyle and including residing in the new house etc. Whilst she wasn't officially, according to records, a partner, in actual fact she was, in the sense we shared any proceeds.”

18 The testator said “House at Mullaway. Built about 1992 and cost a lot of money. The total cost of the house, and all other assets acquired whilst at Mullaway … was paid for by myself." He said “SOURCE OF MONIES Spent at Mullaway, two villas at Safety Beach and four units at Coffs Harbour. Overdraft with Banana Coast Credit Union, mortgages with St George and Westpac, plus as previously mentioned. About $180,000 from sale of Terrey Hills, and police superannuation payout of $329,398.75 about 25.2.92”.

19 The effect of this note is that he stated that he had paid from his own capital for all significant assets, notably the house and land at Mullaway.

20 The testator’s memorandum signed and dated 22 August 2000 is a lengthy record of his dissatisfaction with aspects of the relationship and the reasons for his dissatisfaction. His complaints include:

“From an early stage of us living together, I realised we were unsuited. Caustic rows were regular, and time and time again I decided to end the relationship but recanted. (I had no wish to live without a female companion.) I realized that Helen was frequently untruthful to the point that it was difficult to choose between fact and otherwise.”

21 He gave an account in which the plaintiff told him that she had an accumulated superannuation entitlement from the Shell Company. In June 1997 he was preparing applications for an Age Pension and for a DSS Partner Allowance. She refused to give information about her superannuation – “Whenever the subject was raised she became angry and personally nasty towards me" - and he made enquiries from a friend of the plaintiff who still worked at Shell; the friend found out and told him that there was no Superannuation Fund.

22 He made some statements about conducting the nursery business and the work she had done – “In some ways she was good at it particularly with knowledge of native species". He then said that for about the last two years of trading the business was always running at a loss and he was borrowing against assets to keep going; he noticed that cash was missing at a rate which he estimated at $500 a week for two years; the plaintiff when confronted denied that moneys were missing. He made enquiries but could not find any sign of what happened to the money. He made statements which showed suspicions that the plaintiff's daughter Kendall Tinson had been given money by the plaintiff; he claimed that the plaintiff had agreed that this was so. He questioned the plaintiff about this. Kendall Tinson’s evidence shows that he also questioned her. In evidence (t25) the plaintiff acknowledged that the testator asked her whether she was taking money out of the nursery business "and I said I didn't" (Her later evidence was inconsistent with this).

23 There is in my opinion no concrete evidence that the plaintiff removed money from the nursery business, in significant amounts or otherwise, or that she paid more than a few small amounts to Kendall Tinson. There is no doubt however that the testator profoundly suspected that these things had happened and he told his suspicions to several people. This is a strong indication that the relationship was of a very poor quality.

24 The testator also expressed concerns and recorded arguments about how the plaintiff disposed of her $285 a fortnight DSS Partner allowance, saying that he could not get any satisfactory explanation and that supplies of food in the food cupboard did not bear out that it was spent on the food. He also said that it was the family budget agreement that the plaintiff would purchase food; this must relate to the period after the plaintiff received the Partner Allowance as she did not have funds for that purpose before. He said that after the plaintiff had minor strokes he had managed her money and there had been ample food. He made statements about events which he regarded as adverse to the plaintiff's mental state. He said "Over the years, during regular violent arguments, sometimes over money, sometimes over other matters, she has threatened suicide. Once, when living in the shed, [that is, before 1992] she took my .22 rifle and held that to her head. It was unloaded but the act sickened me." He narrated other instances where she had threatened suicide. The plaintiff has denied having threatened suicide and I do not regard it as having been established that in fact she did. However this narration shows that the relationship was very poor in quality.

25 The testator also discussed why he had stayed with the plaintiff saying "Mostly she is reasonable company, and those times tend to outweigh the other". He said that after a nasty argument he had told her that the relationship was over. “Now, because her personality has changed to quietness and dependence on me [it seems, with her minor strokes] it is a livable relationship. As her health hopefully improves, no doubt the nastiness will return. May be the relationship will continue because I seek female company but the future isn’t filled with great affection and trust.”

26 Statements which the testator from time to time made to others including his daughters show that concerns like these were on his mind, and that he did not regard the relationship as happy or satisfactory.

27 Evidence from the testator's daughters show that he took a particularly poor view of the plaintiff and of the relationship in the last months of his life, when he was severely ill. On the other hand, notwithstanding various expressions of antipathy and distaste, he did not do anything which definitively brought the relationship to an end.

28 The evidence of Gillian Grieve, a sister of the testator, who knew the plaintiff over many years, was based on her observations during visits and several stays in the house over the period 1999 to 2003; in her observation there was very little communication between the testator and the plaintiff, the plaintiff was smoking and drinking heavily and normal conversation with her was very difficult and almost impossible after midday because of excessive drinking.

29 Nursing notes of Royal North Shore Hospital of 13 June 2003, made by a member of nursing staff, include:

When all family had left Patient began to talk about family issues. Tension and unhappiness with relationship with partner main issue, causing some distress to patient. Patient admits have been depressed about issue.

30 A note by a Social Worker on 16 June 2003 includes:

Psych/emotional: Patient reports poor relationship with de facto over many years and appears to believe that this may have triggered his cancer. Plans to move to daughter's home post discharge. Also, grieving death of grandson (nine yrs) 3 months ago from Barters disease. Patient states he is a carrier.
Naturally distressed re diagnosis of cancer – appears determined to reduce stress factors from his life.

31 In my opinion it is a relevant circumstance that the relationship was in the testator's view, for reasons which he gave, at many times very poor in quality. It is also relevant however that it lasted many years, 20 years or so, and that he did not definitively end it.

32 It is in my finding clear that the economic contributions to the testator's assets arose almost entirely from his own resources; any contributions made by the plaintiff such as contributions she claims to have made towards work he did at the Duffy’s Forest house, were at the most very minor in their significance for the assets which he accumulated. It has been proved that she worked earnestly and effectively for some years in the nursery business; she deprecated his work, but I also regard it as clear that he too made a very significant contribution to the work in the nursery business; yet overall it was not a success, it did not contribute to his assets, and was probably a drain on them.

33 The plaintiff made contributions to the shared household and to the testator's well-being by her contribution to housework, purchasing and preparing food, and other domestic tasks over many years. Her contributions of this kind became markedly less after she suffered minor strokes in 1999. There is evidence from the testator's daughters to some degree minimising and deprecating the quality of these contributions. Whether or not her domestic contributions were of high quality, it is quite clear to me that they were made, over many years.

34 Although this contribution cannot be stated or measured in economic terms, I am of the view that the plaintiff's participation in the relationship including the domestic work associated with it contributed in a significant way to the testator's asset position at the time of his death. This contribution should not be lost sight of although in economic terms his contributions were far greater.

35 This is not a case where the plaintiff took a major role in raising children of the deceased; the role which she took while she shared in the household Duffy's Forest in which two of the testator's children were present was no more than minor. Nor is it a case where she supported the testator while he was amassing his fortune. She gave up her earlier employment with Shell, and gave her energies to the nursery venture, which the testator said (and there is no other information) was not commercially successful; it was a net drain on his resources.

36 Where a domestic relationship continues for so long, adverse qualitative elements in its evaluation do not, to my mind, dominate how I should answer the questions posed for the plaintiff's case by ss 7 and 9. In a way the testator recognizes this by the provision he made in his will.

37 The most prominent concern is the plaintiff's needs in her present circumstances.

38 The plaintiff's income is derived from Social Services. This has been her case for about 10 years since the testator resolved his affairs and obtained a Part Age Pension for himself and a Carers Allowance or Partners Allowance for the plaintiff. The standard of life of the plaintiff and the testator can not have been other than modest, when from the time they moved to Mullaway their main source of income was his police superannuation, or when their main activity was operating an unprofitable wild flower nursery. From 1997 onwards both depended on Social Security payments. Extensive submissions by the plaintiff's counsel relating to the plaintiff’s needs had no real relation to her long and well established standard of living, and appear to assume that all estate resources are available to support a higher standard.

39 The plaintiff has some habits which are imprudently extravagant. Several medical histories say that the plaintiff has smoked 30 cigarettes a day for decades; one says 50 years. There is considerable body of evidence about her drinking liquor to excess. According to her own oral evidence this is now in the past and she has no more than two cans of Bacardi and Coke, and that only about three days a week. It is quite clear from the evidence of a number of witnesses, and from histories given to medical advisers with her concurrence, that she has in the past consumed liquor greatly to excess. She firmly denied she had been a heavy drinker, until after the testator's lifetime, but her evidence is outweighed from several sources. It is also clear that she has for decades had a heavy smoking habit; and this continues. She gave evidence (t28-29) to the effect that the testator used to smoke, decided that it was “bad for you”, and made plans for the plaintiff to have hypnotherapy to get off smoking. Figures she has given suggest that she spends almost half her Social Services benefits on liquor and cigarettes. She has also indulged in playing poker machines. According to her oral evidence before me, all these aspects of her life have been significantly reduced and are now minor. Her evidence about these things was highly self-interested and unpersuasive.

40 The plaintiff said on affidavit (5 May 2006) "I have considered my options and I believe that I could live in independent, self-catering accommodation within a hostel type accommodation. I strongly prefer to live in independent accommodation such as a ground floor home unit or a single level ‘villa’ style unit with assistance for cleaning, maintenance and gardens services." She also said "I do not cook meals. I would need the services of Meals on Wheels or a similar organisation to provide me with main meals. … I am able to attend to my needs for morning tea, breakfast, afternoon tea and a light uncooked meal in the evenings. I would need assistance with anything except light waist level dusting and cleaning." Her evidence shows that she does not drive a motor vehicle or have a driver’s licence. Her evidence on affidavit and orally shows that she contemplates living on her own, supported by Meals on Wheels and Community Care. On a view of her position overall and medical ancillary evidence, I find that this is altogether impractical and that independent living is beyond her.

41 The plaintiff’s memory is significantly deficient; for example she could not remember her current address. Overall my observations of her as she gave evidence, and the contents of her evidence tended strongly to confirm medical assessments that she is not a person who is capable of living independently and managing her own affairs. In her own interests she should be in the care of others. In substance she now is.

42 During the second half of 2003 when the testator was ill, and at most times was either in hospital or staying with one of his daughters, the plaintiff was in a considerable predicament living alone in the house. Her care of the house was very inadequate and made it very difficult to the testator's daughters to put the house in a sufficiently clean condition for sale. She was assessed by the ACAT team from Coffs Harbour but told them that she would not move to a nursing home. The ACAT team provided house cleaning services, Meals on Wheels and other assistance, and Kendall Tinson attended to the plaintiff on a regular and frequent basis. Kendall Tinson said "I was aware that everyone was concerned about my mother's condition and position but we had to abide by her wishes to remain in the house". This episode shows that the plaintiff cannot live alone and maintain her own household and required extensive social intervention when she tried to do.

43 After leaving the house in July 2004 the plaintiff lived with her other daughter Cherie Allman in a Brisbane suburb for some months, returning to Woolgoolga for short breaks several times. After about eight months she returned to Woolgoolga to live in a flat. She now shares a flat in Woolgoolga with her daughter Kendall Tinson and Kendall Tinson's child; Kendall Tinson who works part-time at a resort nearby and is sometimes absent for personal reasons of her own, spends much of her time in the flat which is her main dwelling. Notwithstanding the plaintiff's claims about her own attention to housework and other aspects of managing her life, it is clear to me, largely on the basis of Kendall Tinson's evidence, strongly supported by the probabilities having regard to medical evidence, that the plaintiff does not now manage her own daily life well and could accomplish next to nothing on her own.

44 The plaintiff's present mode of life was described by Kendall Tinson in her affidavit of 22 September 2007, dealing with the period of about three years during which they have shared a flat at Woolgoolga since the plaintiff returned from Brisbane. Kendall Tinson's evidence shows that the plaintiff does not assist with cooking meals, and constantly burnt food and pots when she attempted to do so. The plaintiff does her own laundry but her daughter changes her bed and cleans the unit. The plaintiff is not aware of her personal cleanliness and refuses to shower or change her clothes when her daughter suggests she should; but complies about two days later. Kendall Tinson provides all food and cooks the evening meal. The plaintiff does not cooperate with her daughter in managing her medication. She is socially isolated, has no friends, rarely leaves the unit and shows great reluctance to go out and does not comply with her daughter's suggestions to visit a doctor, optometrist, dental technician or physiotherapist. She rarely contributes to household expenses and spends all her pension on her own needs. She is a burden for support on her daughter whose income is limited, working as a casual part-time housekeeper at a nearby Resort. Her daughter attends to paying her bills, collecting medication from the pharmacy and other errands. Her daughter also has to accompany her on the occasions when she does leave the unit; and she is not cooperative on those occasions. It was her daughter's evidence that on three occasions she took the plaintiff to see her dental technician but the plaintiff refused to get out of the car. Kendall Tinson also said "the pattern of her day is that she watches television all day frequently falling asleep in front of it and then of course she cannot sleep at night so she stays up watching television. Recently I have noticed that my mother has greater difficulty getting up out of her chair and regaining her balance to walk anywhere.”

45 The plaintiff’s present living arrangements are not suitable in the long term to Kendall Tinson, whose view is that it is appropriate for the plaintiff to live in hostel care in a retirement village in Woolgoolga. In accordance with her own economic position and needs, Kendall Tinson wishes to be able to take full-time employment away from Woolgoolga, and has had one or two tentative opportunities which she has not been able to take up because of the care she gives to the plaintiff. A body of medical and medical ancillary evidence strongly supports the view that the appropriate life situation for the plaintiff now is that she should live in hostel accommodation where others attend to her meals and housekeeping needs, she has some social interaction, and support and supervision are available.

46 In giving a summary of the plaintiff's condition Dr John Aitken who has been her General Practitioner for some years said:

Mrs Pert has been diagnosed with chronic small vessel cerebral ischaemia. This has led to a series of TIAs or ‘mini strokes’ from the year 2000.
These have resulted in some poor memory and concentration, some impairment of coordination and gait, and some apathy and depression. It means she is also more likely to have further future TIAs, although the chance will be limited to some extent due to medication.

47 Other passages in Dr Atkins report are:

Physical examination was unremarkable. There is a slight tremor, a slight loss of co-ordination, a slight generalised weakness. She has a slightly flat affect. She is oriented in time, place, person. Her insight, perception and thought processes are reasonable only. She has difficulty with speech – both articulating the words and expressive dysphasia – being able to say what she wishes to say. I believe Mrs Pert would find it difficult to live alone without assistance. She would need supervision with her medication and to check on her general wellbeing.

48 On 22 December 2005 Dr John O’Callaghan, Consultant Physician in Geriatric Medicine of Coffs Harbour, made a report for Dr John Aitken the plaintiff's General Practitioner. It seems that Dr O’Callaghan had also seen her two years earlier. He reported:

She is drinking about three glasses of wine daily and smoking 20 cigarettes daily. She appeared cognitively improved and scored 27/30 on MMSE, an improvement of two on the score two years ago.
I believe she has cognitive impairment related to cerebrovascular disease with emotional lability and depression. Helen is keen to go to a self care unit. This would only be acceptable if a considerable amount of assistance and supervision were available at all times. I do believe that ongoing hostel accommodation would be the best option for her.

49 Doctor O'Callaghan offered to facilitate arrangements for ongoing hostel accommodation.

50 Dr Alison Reid is a neurologist who practices in Wickham Terrace Brisbane and elsewhere. She saw the plaintiff at Springwood, Queensland on 18 January 2005 in the company of her daughter Cherie Allman and again on 4 October 2007 in the company of Kendall Tinson. On the first occasion Dr Reid expressed the opinion, with supporting reasons, that the plaintiff would be medically unfit to conduct a court case and would require a tutor. Dr Reid gave this clinical impression:

Ms Pert demonstrates emotional lability and distress. On office testing there is clearly evidence of cognitive impairment. There are deficits in memory, concentration and executive functioning.
Her cognitive problems are a reflection of cerebrovascular disease, heavy alcohol intake, anxiety and depressions.
It is my view that on account of her neurological and emotional condition Ms Pert would be medically unfit to conduct a court case, and I would strongly recommend that she would require the assistance of a tutor/next friend.

51 On the second occasion Dr Reid was given a history, which accords with Kendall Tinson's evidence, that the plaintiff was assessed about two years ago by an Aged Care team and was on a waiting list for a self care unit or hostel at Woolgoolga Retirement Village; that she was earlier on a Disability Support Pension and now received a full Age Pension. Dr Reid was given a history of the plaintiff’s activities of daily living in which they are very restricted, and Kendall Tinson told Dr Reid that the plaintiff had to be reminded to take a shower, to clean her dentures and to attend to general personal hygiene. Her round of activities was described as limited. The history confirmed heavy consumption of wine, spirits and cigarettes in the past.

52 Dr Reid made an assessment of the plaintiff's future needs and care in which the plaintiff should live in a retirement village with facilities including provision of meals and laundry, a supervised environment with general practitioner follow-up, provision of medications, physiotherapy, occupational therapy and supervision to ensure that she is able to continue caring for herself.

53 Dr Ernest Tam, a geriatrician who practices in Eastwood New South Wales, saw the plaintiff on 27 November 2006 for the purposes of reporting in this litigation. He was given history which included chronic smoking, about 30 cigarettes per day for 50 years, and drinking. He expressed this opinion:

Ms Pert is suffering from chronic ischaemic small vessel brain disease with multiple CVA’s and TIA’s, apathetic depression, mild to moderate multi-infarct (vascular) dementia, with impaired co-ordination, balance and gait control. Her medical background includes glaucoma, hypertension and hypercholesterolemia.
Ms Pert’s vascular dementia and neurological deficits would make it unsafe for her to self-medicate, to do housework, to cook meals for herself, and to attend to her personal hygiene. She is unable to do shopping.
Her choice of living arrangement should be decided by herself to her comfort. An independent living unit, with a live-in carer providing 24 hours’ supervision and assistance in activities of daily living, is appropriate at this stage.
Her level of care is expected to escalate should she develop medical complications. More TIA’s, CVA’s or falls with injuries/fractures are likely to happen in the next few years.
She needs regular follow up by her local doctor, maintenance physiotherapy for balance and gait training as well as falls prevention, and occupational therapist re-assessments for home safety, equipments and rails.
She needs ophthalmologist and medical specialist (Geriatrician) follow up, each about twice a year or as required. She may benefit from specific drug treatment (cholinesterase inhibitor) for her vascular dementia. Clinical monitoring is important.
I have read the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules and agree to be bound by the Code.

54 I do not accept Dr Tam's view that the plaintiff's choice of living arrangement should be decided by herself to her comfort. In my finding she does not clearly understand her own needs and capacity and is not capable of making that decision.

55 A report by Mr L.J. Wright, Physiotherapist of Woolgoolga dated 19 September 2007 shows that the plaintiff had been referred to Mr Wright by her solicitor for a brief assessment for ongoing treatment. Mr Wright reported on his assessment, based on an examination of the plaintiff who was accompanied by Kendall Tinson. He attributed discrepancies in information given to him to her lack of insight into aspects of her condition. He made a careful and full Movement Assessment. In this Assessment he stated:

Orofacial and associated function:
Mrs Pert is able to feed herself, although her daughter reports that she is best with “easy” (softer) foods, as she has a tendency to choke on harder foods. The problem may be compounded by the presence of dentures.
There are clear signs of loss of jaw and tongue movement and control; she was unable to move her jaw laterally (part of normal chewing) or protrude it, although she could open and close her mouth in the sagittal plane. She was unable to poke out her tongue on request.
Kendall reported that Mrs Pert has numbness in her mouth, and difficulty judging the size of her bites while eating, with a tendency to choke.
Mrs Pert speaks softly and reported some difficulty speaking, due to loss of control of her mouth and tongue.
Her cough is very weak, and she did not respond with a cough to tracheal stimulation. This, combined with her difficulty with food, renders her at risk of aspiration.

56 Among other recommendations Mr Wright provided guidelines for gentle home exercises. He recommended neuropsychological assessment by a Clinical Psychologist. He said:

Given her orofacial function deficits, I recommend that Mrs Pert be assessed and treated by a speech pathologist, for help with both speech and (more importantly, at this time) eating. Mrs Pert is at risk of aspirating food or drink, which may lead to asphyxiation, or to chest infection.
Periodic review of the home situation (Mrs Pert is living in rental accommodation at present) by an occupational therapist, especially if she moves home, and once or twice yearly otherwise.
Due to her already increased risk of falling, I recommend a trial period of twice weekly physiotherapy sessions aimed at increasing her general fitness and balance. A home exercise program would help, but issues of compliance were raised by Kendall, who expressed the opinion that her mother would respond better within a clinical setting. As part of this program (clinic, and home, if possible), training in respiratory clearance techniques should be included, in order to reduce the risk of chest infection. (The speech pathologist may help with this also).

57 That is to say, he contemplated a home exercise program but contemplated physiotherapy in a clinical setting because of an expectation that the plaintiff may not comply with a home exercise program.

58 This is a slight basis indeed for inclusion of $4,500 per year for physiotherapy for an indefinite number of future years in an assessment of the plaintiff’s needs: altogether too slight to be accepted.

59 Evidence from other medical and medical ancillary witnesses confirms that hostel level care is the appropriate circumstance for Mrs Pert’s life from now on. This is shown by the evidence of Ms Patterson, Occupational Therapist.

60 Ms Fern Patterson, Occupational Therapist, of Recovre Pty Ltd made a very detailed report "Activities of daily living” in 2004 when the plaintiff was living with her daughter Cherie Allman in a Brisbane suburb.

The report contained this recommendation:

The following recommendations are made based on the findings from the activities of daily living assessment:
1. From the current support needs demonstrated and reported during the activities of daily living assessment, Ms Pert requires hostel level assistance. Specifically, prompting and supervision of personal hygiene, eating and supervision of medications is required. As she requires this level of support, she would not be accepted in an independent living complex, which she has expressed as her preferred long term living arrangement.

The recommendation went on to deal with arrangements for the plaintiff’s acceptance in a hostel facility, and for arrangements for personal care while she lived with her daughter.

61 Ms Patterson's report shows that the plaintiff applied to go into a hostel operated by the Tricare facility, it seems in a Brisbane suburb, before 2005; the bond requirement there was not high. Evidence does not show what became of that application. Her expressed wish now is to remain in Woolgoolga. She said that she believed that her name was on a waiting list for a three bedroom house at the Woolgoolga District Hostel (t42-43). That is an altogether unrealistic proposal. Evidence does not show the state of the plaintiff’s application to go to the Woolgoolga Retirement Village; at one time (t41) she said that that village had offered her a place in a hostel. Whatever the position was, several years have been available for her to make an application and wait out any waiting period. After some evidence which was difficult to follow she said (t44) that she had not asked for hostel accommodation at the Woolgoolga Retirement Village. Kendall Tinson regarded as appropriate a hostel where there is 24-hour care, supervision with medications, meals and contact with people. Kendall Tinson was told at the end of September 2007 that the plaintiff was still on the waiting list for Woolgoolga Retirement Village, with a wait of six months although no exact admission date was given.

62 There is a mass of evidence about the availability and cost of Aged Persons accommodation of various kinds. Mr Rossetto a Chartered Accountant whose practice includes forensic accounting made calculations directed to reducing to present value the cost of various forms of accommodation for the plaintiff. One case he considered was providing the plaintiff with her own home; in my finding this is altogether impracticable; she could not manage a home and does not have need for a three-bedroom residence, for which she expressed a wish, or for a two-bedroom residence. In the world of practicalities, hostel accommodation in an Aged Care facility is the only arrangement which can be considered. Mr Rossetto made calculations dealing with various classes of hostel accommodation, which produced present values about $587,000. These were based on the plaintiff’s having a further life expectancy of 22.47 years, derived from the Australian Bureau of Statistics publications which appear to be based on the circumstances overall of 63-year-old females in Australia at the present time. There is no medical evidence assessing her life expectancy, and in view of her history, strokes, disabilities and state of health, past habits of excessive consumption of liquor, contining smoking habit and her present health circumstances including dementia, it is altogether unrealistic to adopt a life expectancy of 22 years. In finding this I have had the benefit of observing her as well as seeing reports on her medical condition.

63 Mr Rossetto's assessment is altogether excessive. In any event, what he suggests is beyond the practical limits imposed by the resources available and the other claims on the testator's bounty. The estimates of the plaintiff’s outgoings put forward contained some elements which were markedly unrealistic, for example return air fares to Sydney from Coffs Harbour twice a year with a carer to see a geriatrician; although one was available in Coffs Harbour. The claim that the plaintiff has a permanent need for physiotherapy at the rate of $4500 per year appears to be built on Mr Wright’s opinion that a home exercise programme would help but that physiotherapy would take place in a clinical session because there were issues of the plaintiff's compliance. Under housing items the daily care fee is included where an annual care fee was appropriate. The assumption that the plaintiff has normal life expectancy for an Australian woman of her age is unjustified. Mr Rossano’s figures also included $3103.37 per annum for hair care and pedicure and $6,240.00 per annum for cigarettes and tobacco. These should be taken with his provision for $1,040.00 for clothes. He also provided for $3,792 per annum for transport. Provisions like these have no real relation, in my judgment, to prevailing community standards of what is right and appropriate as provision for a person in her position: see Permanent Trustee Co. Ltd v Fraser (1995) 36 NSWLR 2446 (Sheller JA). In my opinion Mr Rossetto's calculations should not be used in the assessment of the plaintiff's needs.

64 Put forward by the plaintiff’s evidence and in her case were an array of needs associated with the concept of her living independently; these included taxis for shopping in Woolgoolga and to attend Coffs Harbour (at the cost of $65 each way) for specialist medical appointments, cinema or other entertainment or visiting the Botanic Gardens. Also put forward were needs for shampooing her hair and other cosmetic services suggesting expenditure on average $39.07 per week. She also put forward as needs food, veterinary costs and other costs for her cat. All estimates of her outgoings included outgoings at a high rate for alcohol and tobacco.

65 A careful report by Ms Press Physiotherapist who works as a Rehabilitation Consultant assessing current and future needs of people with disabilities with respect to care and living arrangements, and also performs occupational rehabilitation services, reviews available hostel accommodation. According to this report the Woolgoolga District Hostel is well situated for the plaintiff’s living circumstances. This is the Aged Care facility which Kendall Tinson has been in communication with already. It requires a minimum bond payment of $180,000 and makes an income means tested charge which may vary from $29 to $60 per day. Ms Press reviews two other facilities where the charges are significantly lower. Other evidence deals with other Aged Care facilities, both near Coffs Harbour and in other places; the charges vary widely. Some require bonds up to sums in the order of $250,000; some require bonds significantly lower than $180,000. There are difficulties and delays; it may be necessary to wait many months for availability, and I do not make the choice of Aged Care facility for her.

66 The evidence about the requirement of Woolgoolga District Hostel for an initial bond is not clear. The Hostel's Finance Officer and Director told the plaintiff's solicitor that if the plaintiff was in the hostel section the capital bond would be $180,000; but he also produced a schedule of fees and charges which suggest that there is a limit of $135,000 for accommodation bonds for pensioners. I have acted on the basis that the bond requirement is $180,000, although it is possible that it may be less. Nursing Home patients do not pay an accommodation bond but do pay an accommodation charge. On this assumption, the plaintiff's entitlement to share in the proceeds of sale of the house will leave her with more than $120,000 in excess of the amount paid for the accommodation bond to meet her needs an adverse contingencies. If the accommodation bond is less, the remaining sum will be correspondingly more. She has already received other benefits out of the testator's estate.

67 The provision made for the plaintiff under the testator's will would enable the plaintiff to pay a bond of say $180,000 and still have a reserve of well over $100,000, which she would need because charges made by an Aged Care facility will probably use up most or all her social benefits. Exact assessment is not possible, but the provision made in the will, even having regard to the attrition of the proceeds of superannuation (which the plaintiff was unable to explain) is in my judgment sufficient to enable her to make the transition to the kind of hostel living which she needs.

68 It can be expected that charges for hostel care would leave relatively little of her Age Pension, so she has a need for further funds on which to draw. The provision made under the will is adequate to this need, in my finding.

69 The plaintiff does not have a claim for additional provision because of the poor quality of the relationship and factors in the plaintiff’s behaviour which contributed to this. She did not make significant contributions to the testator’s assets. In her present state of health and disability the only mode of life which she can deal with, and the appropriate mode of life for her is to live quietly and modestly in an Aged Persons Hostel in the care of others. This is all that she is capable of, although she does not understand her limitations, and it is not in her interests that she should have a dwelling or a household of her own. The needs of the plaintiff, as a disabled person with several adverse health conditions, dementia and several strokes, living in hostel accommodation are modest indeed. The provision made by the testator meets them in an appropriate way. Independent living, and indeed managing her own life at all, is quite beyond the plaintiff and the only style of life with which she can cope would be to live in hostel accommodation with a fairly high level of assistance, and without any responsibilities for housekeeping, cooking or cleaning.

70 In my view any further provision for the plaintiff out of the testator's estate would be excessive. In particular it is not appropriate for her to be placed by the court's order in a position where she has some inheritable assets to pass on; that would be outside the scope of the legislation which relevantly relates to maintenance and advancement in life.

71 Of significance in the present case are the provisions which the testator made for his daughters and the nature and strength of their claims for consideration when he made his dispositions and now. The provision he made for the plaintiff is quite considerably greater than the provision which he made or which the Court could have ordered for any one of his daughters. He made the same provision for each of his daughters and did not distinguish their circumstances. Their circumstances vary but all of them have recognizable needs for provision. None of them has ever been given any significant advancement in life by their father. They are the mothers of his grandchildren. They all have mortgage debts. They all have responsibility for bringing up children who are close in blood to the testator and no circumstances adverse to a claim for provision by any of them have been proved; none of them is reasonably open to any criticism about their relationship with or treatment of their father. It seems unlikely that if they receive the provision available undiminished by any further provision for the plaintiff, any of them will be significantly advantaged except in the important respect that it will be possible to significantly reduce (but not eliminate) mortgage debts. These are obligations which the testator plainly felt, and it seems to me must have felt when he came to make his will.

72 The existence of the testator’s obligations to his daughters is a severely limiting element among the considerations against increasing the provision which the testator made for the plaintiff. They have strong claims which it would be wrong to reduce to a point where their claims were not significantly recognized.

73 In my judgment the provision made by the testator in favour of the plaintiff is not now inadequate for her proper maintenance and advancement in life and there are no grounds on which further provision ought now be ordered for her.

74 In these circumstances my order is:

Summons is dismissed.

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