Ransley v Ransley

[2003] NSWSC 709

CITATION:	Ransley v Ransley [2003] NSWSC 709 revised - 5/08/2003
HEARING DATE(S):	28 and 29 July 2003
JUDGMENT DATE:	29 July 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Family Provision. Application by a widow who was granted a life estate in family home. Small estate. Plaintiff awarded whole of the estate. No matter of principle.
PARTIES :	Normita Ransley v Susanne Ransley (Estate of late Sydney Edward Ransley)
FILE NUMBER(S):	SC 3878 of 2002
COUNSEL:	Mr G.J. Graham for plaintiff Mr P. Blackburn-Hart for defendant
SOLICITORS:	Colin A. Hogan & Co for plaintiff Grays Lawyers for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

TUESDAY 29 JULY 2003

3878/02 - NORMITA RANSLEY v SUSANNE RANSLEY (EXECUTOR APPOINTED UNDER THE WILL OF SYDNEY EDWARD RANSLEY).

JUDGMENT:

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Sydney Edward Ransley who died on 19 December 2001 aged sixty-six years. The deceased was survived by the plaintiff, his second wife, and his four children from his first marriage, one of whom is the defendant.

2 The last will of the deceased was made 9 February 1996. He appointed his daughter Susanne as executrix and gave a life interest in his property at 25 Rawson Street, Swansea to the plaintiff, with a gift over to his four daughters. The clauses were in these terms:

“3. I APPOINT my daughter SUSANNE RANSLEY (hereinafter called “my Trustees”) Executrix and Trustee of this my will AND I GIVE DEVISE AND BEQUEATH my interest in the property presently known as 25 Rawson Street Swansea to my Trustee UPON TRUST for my wife NORMITA RANSLEY until her death or remarriage or commencement of a defacto relationship whichever shall first occur her during such estate to pay all rates and taxes and other outgoings thereon and keeping the same in good order and habitable state of repair fair wear and tear and damage by fire lightning storm and tempest excepted and she keeping the same insured against fire lightning storm and tempest to the satisfaction of my Trustee AND I DIRECT that on the death of NORMITA RANSLEY such residence shall form part of my residuary estate.

4. I GIVE DEVISE AND BEQUEATH after the death of NORMITA RANSLEY my interest in my property presently known as 25 Rawson Street Swansea to my Trustee UPON TRUST and I DIRECT my Trustee to sell, call in and covert into money such part or parts of my estate as shall not consist of money and to stand possessed of the said proceeds of such sale, calling in and conversion and my ready cash and to pay the same to the following people:

(a) As to a 1% proportion to my daughter DIANNE BRIDGE;

(b) As to a 33% proportion to my daughter DEBRA HUDSON;

(c) As to a 33% proportion to my daughter JULIA GAZZARD;

(d) As to a 33% proportion to my daughter SUSANNE RANSLEY.”

3 Clearly there is a gap, because in clause 3 the life estate can be determined on earlier remarriage or other events, whereas clause 4 is predicated only on death, but that is not of consequence. Importantly, the will contained no gift of residue, and accordingly there was a partial intestacy, and any other property that the deceased had would pass to the widow, the plaintiff.

4 He left a letter explaining the gift he made to the plaintiff, which is in the following terms:

“Dearest Mita.

I am writing this to try to explain to you why I have made my will the way that I have.

You and Roger have a lot of assets in the Philippines that when you pass away which will all go to Roger.

My children will not receive any of that. And I think that if I left every think to you it would all end up in the Philippines with Roger, as I think that Roger would go to live there When we have gone. I am sorry that I did it this way but it is the only way that I think is fair.

Loving You Always.”

5 The deceased owned the property at Swansea at the date of his death, which is now valued at $350,000. He had cash in the bank at the date of death of $946.61, which has been paid to the defendant. He had a Magna Car worth $2,000 which was received by the defendant and was sold for $1,500. There are a number of items of furniture and tools which are not valued, which the plaintiff has offered to the defendants.

6 The defendants have paid the funeral account of $3,683.07, and insurance of $552.23. There are legal costs of administering the estate of $3,662.68 and the costs of the proceedings on the defendant’s part are at least $10,000. This is a total of $17,897.98. Clearly the house will have to be sold to meet those costs. The plaintiff has no funds to meet them.

7 The plaintiff’s solicitor has ignored the court’s pre-trial direction to file and serve an affidavit as to what is the estimate of the plaintiff’s costs of the action. This may be because the plaintiff has entered into a “no win, no fees” cost agreement with her solicitor in respect of this action, and a claim in the Dust Diseases Tribunal under which the solicitor will receive $25,000 and disbursements of $10,000 for both actions. However, the terms of the agreement provide that it is only if she succeeds in the Dust Diseases action that he will be paid. As I will point out later, it seems at the moment she will not succeed.

8 I will deal briefly with the history of the parties. The deceased and the plaintiff were married at Newcastle on 16 November 1981. At that time the deceased was a forty-six year old panel beater, and he was already living in the house at Swansea. It was the deceased’s second marriage, his earlier wife having died. The deceased had four children, as I have indicated, and the plaintiff had a son from a previous relationship.

9 After their marriage they commenced to live at the Rawson St property. The plaintiff was previously of Philippine nationality, but she obtained citizenship in Australia on 6 August 1982. For five years after the marriage the deceased worked as a panel beater and the plaintiff worked as a house cleaner and earned some income for herself and the deceased. The deceased lost his job in 1986 and was on the dole until eventually, as a result of a back problem, he received a disability pension. He had a lung disease caused by asbestos exposure, and by 1998 he was totally dependent upon the plaintiff for his care and wellbeing.

10 The deceased died, as I have indicated, and probate was granted on 4 February 2001. These proceedings were commenced within time. The plaintiff is an eligible person and I note the approach to be adopted which is set out Singer v Berghouse (1994) 181 CLR 201 as follows:

“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.”

11 The plaintiff is single and is sixty-one years of age. She has a thirty year old son who is not dependent upon her. She receives a disability pension of $416 per fortnight. So far as assets are concerned she has two vacant blocks of land, one in Logan City and another in Quezon City in the Philippines that have been on the market for thirteen years but have not sold. She has not received any offers in respect of them. If they were sold the most the evidence indicates they would achieve would be some $73,000. Considering the lack of interest they are not something which the plaintiff could rely upon to support her.

12 She shows no intention of wishing to return to the Philippines, as is natural given the twenty years she has now spent here and the fact that she is now an Australian citizen. There was reference to other property in the Philippines which consists of two apartments, but they are owned by the plaintiff’s brother and the plaintiff’s son.

13 I have earlier referred to the Dust Diseases claim, and apparently that was filed. In paragraph 14 the plaintiff says:

“I cannot establish where he worked in the asbestos related industry with accuracy because he never told me. I understand that I must establish certain standards of proof as to the cause of death being work related.”

14 She said that the claim was bogged down as at the time of swearing her affidavit. If that is the situation, then clearly it is not likely to succeed. I would have thought that if the family knew his work history they might have been able to help, and obviously if she had obtained some claim that was worthwhile then a different result might have happened in this case. However, given the absence of knowledge that she has I think I should assume that there is no value that she is likely to receive from that claim.

15 The plaintiff has no qualifications that are recognised here. Her only experience of work has been cleaning. There is medical evidence to show that she has been treated for a cerebral aneurysm which affects her memory. She has had a mastectomy as a result of breast cancer and is blind in the right eye. She has treatment for high cholesterol stress and a sleeping disorder. I think it is clear she will not be able to work in the future.

16 She did make some contribution to the estate in that she brought $1,000 Australian into the relationship when the parties married. She also had ten thousand pesos in the Philippines which were used for holiday funds.

17 The plaintiff during the period of the relationship had been back to the Philippines on eight occasions, and the deceased on seven occasions. Normally they paid for their own airfares to the Philippines.

18 The estate property was owned by the deceased before his marriage to the plaintiff and there has been no contribution to that property by the plaintiff. The relationship between the plaintiff and the deceased was apparently a happy one and obviously she looked after him during the last few years of his illness before he died.

19 It is necessary to consider others having a claim on the bounty of the deceased. The first of these is Dianne Bridge who has filed no evidence in the proceedings and apparently has not seen the deceased for many years. The next is Debra Hudson. She is married, forty-four years old, with three non-dependent children. She and her husband own their home, with a small mortgage. She has a small craft shop which produces some income, and her husband works for a council and receives $500 per week net. They are managing satisfactorily. Debra had a good relationship with the deceased. Apparently the deceased gave her a block of land when she married.

20 Julie Ransley is forty-four years old, divorced with five children, three of whom are dependent upon her. She has an income of pensions and allowances amounting to $1,203 per fortnight. She does not detail her expenses in her affidavit. She has no assets of substance and had a good relationship with the deceased.

21 The defendant Susanne Ransley is thirty-seven years of age and is in a stable de facto relationship. She has two children aged between six and eight years. She and her partner own their home, which is subject to a mortgage. She works with her partner in his business as a builder, and they are able to meet their daily needs. They are all in good health and Susanne had a good relationship with the deceased.

22 The deceased’s fears which were expressed in his note seem to be unfounded in two respects. The plaintiff’s son Roger is thirty, married with a child. He lives in Australia and has Australian citizenship. According to his affidavit evidence he has no intention of returning to the Philippines. The plaintiff’s property in the Philippines is of doubtful value, and accordingly probably something which will not be of great use to her.

23 As I have said, there is no suggestion that the plaintiff can meet the costs of administration, and accordingly the house will have to be sold to meet these costs. Probably the plaintiff cannot meet the rates and insurance on the property, which is in any event too large for her.

24 Her interest is an equitable life interest in the property subject to defeasance on the happening of certain events. If the property is sold the plaintiff would be entitled to the income on the remaining funds. There is no obligation on the trustees to purchase a new home for the plaintiff under the will. Under s14DA of the Trustee Act the trustee could do so, but that is a matter for the Trustee’s discretion.

25 I turn to what has been said by the plaintiff in respect of how she has been left with inadequate provision for her proper maintenance, education and advancement in life. In this regard I am reminded of what was said by Sheller JA in the Court of Appeal in Singer v Berghouse on 23 July 1992. There his Honour had the following to say:

“Sheller JA (Cripps JA agreeing) said: ‘I must say that I find it extraordinary that the appellant presented scant or no evidence as to her present income and outgoings or as to her intentions or needs for the future or as to what lump sum provision applying appropriate discount tables would be required to meet these claims or needs, if they exist. In my opinion, in the circumstances of this case, for the court, in the absence of any such evidence, to make an order for the payment to the appellant of a lump sum is to do no more than act on speculation and, contrary to the prohibition contained in s9(2) of the Act, to alter the deceased’s disposition of his property in the absence of proof that he has inadequately provided for the appellant.”

26 All the plaintiff said in her affidavit was that she would be forced to seek full time care in the future, and if that occurred she would have no interest in the Rawson Street property. Her solicitor said in a letter to the defendant’s solicitors, in answer to a question on what were her needs, the following:

“3(b) As presently situated she is unable to sell, mortgage or otherwise deal with the real estate and this is the only matter of real concern. As to this you are advised that our client is 60 years of age, she has suffered a cerebral aneurysm affecting her memory. She is blind in her right eye and has had breast cancer with a mastectomy. It appears that her need to live in a nursing situation is quite real.”

27 Strangely no evidence of the costs of alternative accommodation or the cost of nursing home accommodation in the future has been provided in the plaintiff’s evidence. There also has been no detailed evidence of her living expenses but it is clear from the decrease in her savings and capital since the death of the deceased that they have been greater than her income.

28 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 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 unforseen contingency or disaster that life might bring.”

29 In this case the plaintiff and the deceased were married for twenty years. It was not a life time relationship and they did not have children together. The plaintiff contributed nothing to the estate other than the small amount of cash that she provided. In these circumstances she would not be entitled to the usual provision made for widows to which I have just referred. In any event the estate is not sufficient.

30 There are however a number of factors to be considered. The plaintiff will not be able to work and will be dependent on a pension for the rest of her life. She indicated that it was her blindness that concerned her as to the future, and as to her care. At times she has difficulty with vision. The effect on her in the future because of her aneurysm was not addressed in the evidence, nor was any prognosis given in respect of her breast cancer, but each of those matters must be worries for the plaintiff and indicate that she may have future problems.

31 She has a need for accommodation as she will have to vacate the house. Presumably a smaller house or a unit in the area of Swansea, where she wishes to remain, would be available to her at a cost within the funds remaining after the sale. The estate is a small one and it clearly cannot meet all the claims upon it. The defendant sought to retain the life estate and the gifts in remainder.

32 The question of what is the appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a long standing de facto partner has been dealt with in a number of cases. In the 1970’s and 1980’s there are a number of decisions of single Judges of this Court where they have held that a life interest with particular attributes were appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd, Holland J 18 December 1979; Banks v Hourigan, Waddell CJ in Eq, 2 March 1989, Cameron v Hills, Needham J, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 Mason J said:-

“A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, where a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy. As has been pointed out in Elliott v Elliott that statement was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased.”

33 A change in the High Court’s attitude to the provisions for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Warladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J who was one of the majority in White v Barron at pp 438-440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application. By the late 1980’s other judges in this Division were taking a slightly different view. For instance, in Court v Hunt 14 September 1987, unreported, Young J said:

“Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves, and one judges the evidence in these sort of proceedings against that background knowledge.”

34 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. After talking about the evidence necessary, his Honour went on to say:-

“In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non-capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff’s property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow.”

35 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky, 5 October 1998, unreported, the Court said in the course of discussing the provisions for widows:-

“(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse’s accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984 per Hutley JA.

36 In Permanent Trustee v Fraser 36 NSWLR 24 at P 47, Sheller JA had the following to say:

“Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security.”

37 In Salmon v Blackford, 18 February 1997, the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:-

“The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow’s advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.
The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails.
I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty.”

38 This seems to indicate a different approach to that referred to by the High Court in White v Barron.

39 The plaintiff is sixty-one years of age and on the life tables will have, putting aside her medical problems, a life expectancy of at least twenty-three years. She has an obvious need for accommodation, which the deceased recognised. The medical problems and advancing age will require her to have access to capital to give her flexibility in respect of her future accommodation.

40 It is difficult for the deceased’s children, but the fact of the matter is that he did not leave sufficient estate to meet all the claims on his bounty. In my view the plaintiff should receive the whole of the estate absolutely.

41 Accordingly the orders I make are:

1. I order that in lieu of the provisions for the plaintiff in the will of the deceased she receive a bequest of the whole of the estate.
2. Subject to submissions the defendant’s costs on an indemnity basis are to be paid or retained out of the estate of the deceased. Any submissions on costs are to be made within fourteen days by arrangement with my Associate.
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Last Modified: 08/05/2003