Raffoul v Raffoul

[2008] NSWSC 757

CITATION:	Raffoul v Raffoul [2008] NSWSC 757
HEARING DATE(S):	22/07/08 and 23/07/08
JUDGMENT DATE :	24 July 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
EX TEMPORE JUDGMENT DATE:	24 July 2008
DECISION:	Paragraph 73
CATCHWORDS:	Family Provision. Application by widow and a daughter for whom no provision made. Orders for provision. No matter of principle.
PARTIES:	Mariam Faffoul v Milad Raffoul
FILE NUMBER(S):	SC 6273/06
COUNSEL:	Mr J Atkin for plaintiff Mr C Stomo for defendant Mr M Evans for cross-defendant
SOLICITORS:	McGrath Dicembre & Co for plaintiff Comino Prassas for defendant Kalmath Lawyers for cross-defendant

- 1 -

THE SUPREME COURTOF NEW SOUTH WALES
EQUITY DIVISION
ASSOCIATE JUSTICE MACREADY

THURSDAY 24 JULY 2008

6273/06 MARIAN RAFFOUL v MILAD RAFFOUL

JUDGMENT

1 HIS HONOUR: This is the hearing of an application under the Family Provision Act in respect of the estate of the late Antonio Raffoul who died on 7 August 2006 aged 76 years. The plaintiff is the deceased's second wife, his previous wife having died in February of 1985.

2 There is also a claim by the deceased's daughter, Denise Khan which appears to have been brought irregularly in these proceedings by way of a cross-claim filed on 6 March 2008.

The last will of the deceased

3 The last will of the deceased was made on 26 March 2006 under which he'd appointed his son, the defendant, as executor. He left his estate equally between his two sons, Michael and Jimmy and his youngest daughter Sandy Raffoul. He made no provision for his wife, the plaintiff, and in a note attached to the will he said:

“I specifically have made no allowance for my wife and my remaining daughters because during my lifetime I have always looked after them and provided to them with all the luxuries of life that I could afford at the expense of my sons. I have been made aware of the Family Provision Act 1992 (New South Wales) and its possible consequences but it is my sincere desire that my will will be administered as I have provided. In the event of any of my other children or my wife deciding to challenge my will I respectfully request from the Honourable Judicial Officer determining the proceedings to consider and accept my wishes."

4 He also made no provision for his other three daughters. He made an earlier will on 6 January 1999 in which he provided for the plaintiff and his then six children.

Estate of the Deceased

5 The estate consists of the deceased’s home in Kemmis Street, Randwick. There are competing valuations of $800,000 and $900,000. The defendant’s valuation suggested a valuation of $800,000. In his valuation, which is quite short, he did not deal with any comparable sales.

6 The plaintiff’s valuer, who valued the home at $900,000, gave comparables. A recent sale which occurred just before the trial was the sale of number 3 Kemmis Street for a sum of $992,000. It appears that property at number 3 was renovated and the subject property with which we are concerned, is not renovated and may need upwards of some $200,000 to fully renovate it. It may be less, depending on whatever the particular purchaser wants to do.

7 There is one difference between the properties and that is that this present property has a self contained flat above the garage at the back of the home. I would have thought that plainly this would add some value, and it certainly appealed to the valuer who valued it at $900,000. He said, notwithstanding the sale price of number 3, he still stood by his valuation.

8 It seems to me that given the extra area that is available for accommodation, there is a basis for some higher figure and a proper basis for what the plaintiffs valuer has determined and I accept his evidence of a value of $900,000.

9 There is cash in the estate, or was, in the sum of $480. In addition, there are the costs involved in these proceedings. The costs of the parties are estimated as follows:

Plaintiffs costs $75,000
Defendants costs $65,000
Denise Kahn $35,000
This is a total of $175,000.

10 Using the valuation of $900,000 the net estate after allowing for sale costs if the property is sold is likely to be in the order of $70,000 before remaining debts are taken out. In this case there is evidence by one of the sons, Jimmy, of advances he made by way of loan to the deceased which total $32,000. They are statute barred but the executor seems prepared to allow them and no doubt they will be paid out of the estate. This would bring the estate down to something close to $667,000.

11 Plainly, given the plaintiff’s and the defendant’s costs, the property will have to be sold if the defendant or some others cannot buy out the other interests.

Family History

12 The deceased was born in Lebanon in 1930 and his second wife, the plaintiff, was born there 53 years ago. He married his first wife Mary Ishak in Lebanon on a date which is not clear on the evidence. They had four children. Their son Milad was born in January 1966 and in August that year the family migrated to Australia. Their daughter Violet was born in February 1967 and the son Jimmy was born in 1972.

13 They lived in Kemmis Street in rented accommodation and then in June 1979 the deceased had his wife Mary Raffoul acquired the Kemmis Street property at Randwick. In June 1984 a property was acquired in Ravenswood Street, Randwick in the names of the two sons for a purchase price of $175,000.

14 The deceased's first wife, Mary, died as I mentioned on 20 February 1985 and, following this, the Kemmis Street property was transferred into his name.

15 The deceased went back to Lebanon and found the plaintiff, whom he married in July 1986. She migrated to Australia in October 1980 and commenced to live at Kemmis Street.

16 They had two children, Mary born in June 1987 and Therese who was born in June of 1988. In about 1981 the deceased ceased work and started receiving sickness benefits, as did his wife, who received a carer's pension.

17 In March 1993 pursuant to a power of attorney from his two sons, Milad and Jimmy, he sold the property at Ravenswood Street for a price of $525,000. It appears that he has used $200,000 of those funds to purchase a block of flats in a small town in Lebanon, and used another $10,000 to $20,000 to buy another block of land in this town. The balance of the funds seemed to have been used by the deceased over the subsequent years and are certainly not available now.

18 In March 1993 there was what was alleged to be a separation agreement which was signed and I will come back to that later.

19 On 23 August 1993 the deceased went through some form of ceremony and may have married a person called Hala Amziraldi in Lebanon. This was notwithstanding the fact that he had not been divorced in Australia. They had a child, Sandy Raffoul born in Lebanon in 1995. On 6 January 1999 he made the will to which I have referred. That relationship with Hala seems to have ceased at some stage because in 2002 the child Sandy, then aged 7 years, came to Australia and lived at Kemmis Street with the plaintiff and their two daughters.

20 In due course in 2005 the deceased received an age pension and he made his last will on 26 March 2006. Sandy was not happy living with the plaintiff and the other two girls and she moved out to live with Milad and his family in July 2006 and has become part of that family.

21 The deceased died on 7 August 2006 when he was in Lebanon. Probate was granted and the summons and the cross-claim by Denise Khan were brought within time.

22 Notice of this application has been served on all eligible persons except Hala Amziraldi. The evidence before me demonstrates that it is impractical to serve her as she cannot be found and, accordingly, I will not take her circumstances into account in considering the present matter.

Eligibility

23 Both the plaintiff and Denise Kahn are eligible persons and the proceedings, as I have already said, were commenced within time.

24 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 following:-

“The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co 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 etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and 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."

25 I turn to consider the plaintiff’s situation in life. The plaintiff is 53 years of age and her two daughters, who are now 20 and 21 years of age, live with her. Apparently they are employed and they assist their mother with bills by their contributions to the household. She has no assets of any substance apart from $10,000 in the bank and she receives a pension $420 per fortnight.

26 The relationship between the plaintiff and the deceased deteriorated after the birth of their two children and in 1992 the deceased commenced a relationship with Hala Amziraldi, to whom I have referred, in Lebanon. The deceased would live in Lebanon for six months with Hala and live in Australia for the other six months.

27 I accept that the plaintiff’s relationship with the deceased deteriorated as a consequence and in 1995 the deceased and Hala had a child; Sandy. Sandy came to Australia in 2003 and lived with the plaintiff and her daughters until 2006 when she moved to the home of the defendant.

28 In 1993 the deceased procured the signature of the plaintiff to a "separation agreement" which contained an agreement for a release of rights under section 31 of the Act. The document provided nothing for the plaintiff as the provisions were that each party kept their own property. However, the house was in the deceased's name. The agreement was never approved by the Court and, accordingly, under section 31 (2) of the Act it has no effect. The plaintiff received no legal advice on it and says that it was procured by the deceased getting her to sign a blank piece of paper. Plainly that did not occur. But in any event, it is only a demonstration of the breakdown of the relationship so far as it was viewed by the deceased.

29 Apart from this, there is also evidence that there was violence by the deceased on the plaintiff and she reported the deceased to the police as a result of this violence in 2005.

30 During the course of the relationship that plaintiff says she saved money from her pension funds with which she purchased an olive grove in Lebanon. No details are available and apparently the deceased sold it and kept the proceeds. It also seems clear that the deceased met the household bills and there is evidence of this.

31 The plaintiff speaks very limited English and needs the assistance of her daughters in this respect. She has never worked in Australia and plainly will be dependent on the pension for the rest of her life.

The situation in life of Denise Kahn

32 I turn to consider the situation in life of Denise Kahn. Denise is married with two dependent children aged 3 1/2 years and eight months. She does not presently work and hopes in the future to be able to get back into the workforce. She married in 2001 and her husband receives $45,000 per annum gross as a truck driver. She and her husband own a house worth $780,000 which is subject to an interest only mortgage of $490,000. Her brother occupies part of the house and pays $1,200 per month rent to her.

33 At the time of her mother's death Denise was 13 years of age and, although attending school, was ultimately concerned with the household chores that had to be done. After her father's re-marriage the load on Denise and her sister Violet was reduced somewhat as the plaintiff did the cooking in the house.

34 The birth of the plaintiff’s two children in 1987 and 1988 added to the load that was placed on Denise and her sister Violet. They were the people who did many of the things that a father would mainly do such as take the young children shopping, on weekends, to the movies and things of this nature. That help extended to the deceased included attending to his needs for support such as taking him to medical appointments and the like. This became particularly onerous once the deceased started in 1992 spending six months a year in the Lebanon. She would have to assist the plaintiff and the children substantially in the period when he was away and this was exacerbated when Violet moved out in 1991.

35 It 1995 Denise left home over a disagreement with the deceased. She wanted to work overtime and his view was she could not, and should stay at the home and look after his family for him. Contact was resumed in 2002 but even in that period she was still persisting with contact with the plaintiff and the children.

36 In my view there is nothing in the break from her father which would detract from her claim. Her father was only concerned about having her available to look after the children.

37 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are his beneficiaries, being his two sons and his youngest daughter Sandy.

Milad Rassouf

38 Milad Rassouf is 42 years of age, married, and has five dependent children aged up to seven years. They also look after the deceased's daughter, Sandy, who came to live with them in 2006. Sandy is now 13 years of age and in year eight at school.

39 Milad has worked as a surveillance operator but in the year 2000 he joined with his brother, Jimmy, in setting up a company Standby Waste Pty Ltd, which is an earthmoving and demolition company. In the year 2006, the first year that he prepared a tax return in this regard, he was paid a gross salary of $60,000 per annum.

40 He and his brother Jimmy owned the property used by the company in Kelly Street, Matraville. His half share is worth $900,000 and his half share of the mortgage is worth $425,000. He also owns a block of land used for parking vehicles and it is worth approximately $250,000. He has personal effects including a car worth $15,000 and other personal effects. His superannuation is worth $16,404.

41 He appears to have, together with his brother Jimmy, been involved in the support of the plaintiff and her two daughters, paying bills for them between 1992 to 2006 and these totalled a sum of $30,954.. They also provided furnishings to the plaintiff’s children.

42 Both Milad and Jimmy own property in the Lebanon. The four flats are in a village in what is presently an un-settled area in that country. It was mentioned that they were bought by their father in 1993 for $200,000 and there was a vacant block of land purchase for the sum of $20,000. The flats are mainly rent controlled and provide a minor income. Recently an offer was made of $100,000 for them but that offer was not accepted because they did not know what was the true value of the properties. There is also a mountain shack but apparently that is derelict and cannot be sold. Apart from the offer of $100,000 there is nothing to suggest any greater value in these three properties.

Jimmy Raffoul

43 Jimmy is a single man having recently separated from his defacto partner, to whom he has agreed to pay $80,000. He has no children.

44 He, like his brother, draws a salary of $60,000 from the business which has seven workers. He has not put forward any valuation of the business but on the tax return, although having a large turnover of about $2 million, it is only marginally profitable; but this is after allowance for their salaries and using $100,000 a year to meet the mortgage payments on the properties.

45 He has his half share in the property at 7 - 11 Kelly Street, which half share is worth $900,000, subject to a mortgage. His half share is $425,000. He owns 5 Kelly Street, which he now says is worth $725,000, although 18 months ago he valued it at $900,000 and he owes $450,000 on it.

46 He has other assets which comprise superannuation of $15,479, furniture and cash of $10,000. He has a car provided by the company. His monthly expenses are $3,000.

47 He also assisted the deceased from time to time. In 1992 he loaned him $18,000 and in 1993 $15,000 and those funds were not repaid but he intends to seek repayment from the estate. He also assisted the plaintiff and the children in the way I have already indicated.

Sandy Raffoul

48 Sandy Raffoul is 13 years of age and is in year 8 at school. Although her school reports were not good in the past, with some remedial teaching which has been paid for by Milad her skills are improving , and she may go on to Year 12. She will do doubt continue as part of Milad’s family till she leaves home. Her mother cannot be located and her father is dead.

Discussion

49 It is necessary to see how well each of the claimants have been left without adequate and proper provision for the maintenance, education and advancement in life. It is only if this has happened that the Court can make an order adjusting the affairs of the estate. It cannot make what people think may be a just or fair will, it is only a matter of what the Court can do in accordance with the Statute.

50 Denise is presently not working so her claim is simply for a legacy of $75,000 to assist her in reducing her mortgages and her expenses whilst she is not in employment.

51 The plaintiff seeks provision of 70% of the net estate to provide her with a two-bedroom unit in which to live with her daughters.

52 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

53 There have recently been reminders about the limited use of such formulations. In Marshall v Carruthers NSWCA Young JA said:

“73 It must be remembered that Powell J put his proposition as a “broad general rule”. However, there is in fact no “ standard former spouse” to which one can just apply that proposition as a rule of thumb.

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.

75 I also take this opportunity to reject Mr Ellison’s submission that a person who has a claim as a class (a) eligible person ipso facto has a stronger claim than a person who comes under class (b). Indeed, in many cases, such as where there are infant children, this may not be so.”

54 Palmer JA concurred in these sentiments.

55 The matter was again dealt within more detail in Bladwell v Davis & Anor [2004] NSWCA 170. In that case Bryson JA with whom Ipp JA concurred on this aspect said:

“12 There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. “ Widow takes all” is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned.
13 Observations on the claims of widows were made by Powell J in Luciano v. Rosenblum [1985] 2 NSWLR 65 at 69-70 in these terms:

“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.”

These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration.

14 In Golosky v. Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the will beneficiaries whose interests were affected, were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring) ordered further provision for the widow, and Kirby P referred to Luciano v. Rosenblum briefly for comparison, but also said:

“Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an “able bodied son” was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [ Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575f] , 580f; cf Anderson v Teboneras and Anor [1990] VR 527 . So should inflexible rules about spousal provision.”

15 In Hertzberg v. Hertzberg [2003] NSWCA 311 provision ordered by Acting Master Berecry for a widow, second wife of the testator, out of a large estate was confirmed by the Court of Appeal. There was no competing claim or circumstance of need of any will beneficiary. McColl JA said at [35] in the context of the claim of a widow for the matrimonial home (which in this case the claimant owns):

“His Honour’s judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the deceased may well have contemplated he had left the respondent appeared to have altered.”


The statement in the first sentence of this passage should be understood in its context of a claim in a very large estate where there was no competing claim based on need.

16 In Sayer v. Sayer [1999] NSWCA 340 at [34] Sheller JA (with whom Davies AJA concurred) accorded primacy to the claim of a widow (of a second marriage) over the claim of a granddaughter who was an eligible person “in the circumstances and in accordance with prevailing community standards.” This does not in my opinion express any general principle of paramountcy.

17 In Cropley v Cropley [2002] NSWSC 349 at 56 Barrett J said:

When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow’s claim to maintenance out of the estate of her deceased husband is a claim which is “paramount” and “of a high order” is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows:

"In my opinion, the question is whether [the grandchild] has satisfied the Court that there is, in the circumstances and in accordance with prevailing community standards (Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46 ), sufficient in the estate to provide for the widow’s proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her.”


This was accepted as an accurate statement of the law by Palmer J in Latimore v Latimore (2003) NSWSC 364 at [59]. At [57] Barrett J proceeded to approach the applications according to the two stage approach described in Singer v Berghouse (1994) 181 CLR 201.

18 In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s.7 and the approach established by Singer v Berghouse . Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982 .

19 In the application of the test in s 7, and of the exposition thereof in Singer v. Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v. Berghouse , in full and with reference to the instant facts. Defeat of the opponents’ claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.”

56 Interestingly Ipp J adopted this in para 1 of his judgment and also said as follows:

“I agree with Bryson JA, for the reasons his Honour has stated, that 'it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201
'I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."

57 Stein AJA agreed with both judges.

58 The plaintiff is the second wife of the deceased and she married into a home that had been provided by the deceased and his first wife. It was then owned by the deceased. At the time of their marriage the plaintiff was 25 years younger than the deceased and she bore him two daughters, after which she seems to have been spurned by the deceased. Notwithstanding his attempts in getting the separation agreement signed, he still seems to have regarded the plaintiff as his wife even as late as the time he made his last will. There is no evidence to suggest that the breakdown in the relationship was the fault of the plaintiff. Any blame lies with the deceased. Notwithstanding the difficulties, the marriage was one of 20 years duration in the one home.

59 The difficulty with this matter is a common one. After payment of costs the estate is not large enough to accommodate all the claims upon it. There thus has to be some priority and in this respect the claim of the widow has to be given serious consideration.

60 The plaintiff advanced evidence from Mr Anderson, a valuer, to deal with the sales of units in the Randwick area. He concluded that a two-bedroom basic older unit in Randwick would be obtain for about $400,000; a two bedroom reasonable unit within close proximity in a quiet street would be $450,000 to $500,000; and a three bedroom unit within close proximity in a quiet street $450,000 to $550,000.

61 This evidence was met with evidence that was prepared by Denise Kahn who ascertained properties which may be available for purchase for the plaintiff in adjoining suburbs. She found that if one looks at two bedroom units, and using simply the prices at which they are offered for sale, one finds that at East Lakes two bedroom units are priced between $290,000 and $320,000. In the Hillsdale area they vary even more-so and a three bedroom unit can be purchased for $330,000; in Kensington a two bedroom unit may cost $340,000.

62 This evidence is of various units which are close to bus routes which have to be used by the plaintiff because she cannot drive and does not have anyone who has a car that can drive her around.

63 There was also tendered some sales evidence of sales recently in the East Lakes area. For instance, a two bedroom unit was sold for $308,000 and one of the ones that had an asking price of $310,000 had in fact been sold in May for $286,000. Plainly this evidence does indicate that there are some units that might be available in the $300,000 range and has prompted an open offer from the defendant to pay $350,000 plus costs.

64 There would be available to the plaintiff a home owners grant which would be a benefit of some $7,000 in respect of such a purchase at that price.

65 I think in making provision for the plaintiff for somewhere to live it is important to bear in mind she has lived in this area all her life. She has a difficulty with language and just because she shops once a month at East Lakes does not seem to me to indicate that she should move from an area she knows and where she has at least one friend available to her.

66 Nothing is being provided in making provision for a unit for her for her maintenance. It would be difficult for her because she only has the pension and she has to meet the costs of maintaining the unit. Nothing is being provided for her contingencies in life and all she has is $10,000 to cover any contingencies if she gets sick.

67 She is in a fairly parlous situation and, after all, she did bear the deceased two children and was his wife for some 20 years. She suffered more because of the deceased’s actions rather than her ability as a wife. I do not accept her evidence as to the extent of contributions that she made.

68 In my view an appropriate figure for her to receive, at least to provide her with a unit in the area, is in the area of $450,000 but this has to be balanced in respect of the other needs.

69 So far as Denise's claim is concerned, she was left out of the will entirely but her provision to the deceased was substantial and allowed him to avoid his responsibilities to his second family.

70 It should be recognised in the same way that the deceased recognised the contribution by his sons and the duty he owed to provide for his younger daughter Sandy and something in the order of $50,000 would be appropriate.

71 If I made these provisions from the estate, each of the beneficiaries would receive something in the vicinity of $220,000. Putting aside some $500,000 for legacies leaves $165,000 one-third of which gives an amount of $55,000 for each residuary beneficiary.

72 It would be appropriate in my view that Sandy’s share should have some priority in terms of any risk in the figures not meeting expectations. Accordingly, I propose to give her a legacy of $55,000 in lieu of her one-third share of the residue of estate and Denise can receive her one-third share of the residue.

73 The orders I make are as follows:

(1) The plaintiff to receive a legacy of $450,000.
(2) That in lieu of the provision she received in the will of the deceased, Sandy Raffoul is to receive a legacy of $55,000.
(3) Denise Khan is to receive the one-third share of residue held for Sandy Raffoul under the will of the deceased.
(4) Interest is to run on these legacies if not paid within three months at the rate provided for under the Probate & Administration Act 1898.
(5) The plaintiff’s and Denise Khan’s costs to be paid out of the estate of the deceased on the ordinary basis.
(6) The defendant’s costs to be paid or retained out of the estate on an indemnity basis.
(7) I reserve further consideration if there are some proposals for the purchase of a property in order to give further consideration to the powers which might be necessary.
(8) I order the exhibits be returned.

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