Rayner v Rayner

[2006] NSWSC 335

CITATION:	Rayner v Rayner [2006] NSWSC 335
HEARING DATE(S):	26 April 2006
JUDGMENT DATE :	28 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
CATCHWORDS:	Family Provision. Claim by window in respect of an estate left to children of the first marriage subject to a life estate in favour of the widow. Whether it was appropriate to give an absolute interest to the widow and the extent of that interest.
PARTIES:	Pamela Joan Rayner v Margaret Rayner & Deborah Emerton - Estate of Raymond John Rayner & 1 Ors
FILE NUMBER(S):	SC 5259 of 2004
COUNSEL:	Mr J. Anderson for plaintiff Mr C. Simpson for defendant
SOLICITORS:	Jackson Smith for plaintiff Fox & Associates for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Friday 28 April 2006

5259/04 Pamela Joan Rayner v Margaret Rayner and Deborah Emerton (Estate of late Raymond John Rayner)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act in respect of the estate of the late Raymond John Rayner who died on 1 June 2001. The deceased was survived by the plaintiff his widow and the second wife of some 23 years together with three daughters and a son from his first marriage.

The will of the deceased

2 The last will of the deceased was made on 12 April 2000. Under that will the deceased left to the plaintiff the right of occupancy in the former matrimonial home which was a rural property at Dyers Crossing near Taree comprising a dwelling house on 26 acres and the right of occupancy was expressed terminate upon the occurrence of

(a) the death of the plaintiff,
(b) the vacation of the property by the plaintiff, or
(c) the remarriage of the plaintiff.

3 The deceased also left the plaintiff his personal effects and the contents of the home. The house of the deceased upon the determination of the plaintiff’s right of occupancy was to pass to his three daughters two of whom are the defendants in the proceedings and the executor uses of his will.

Assets in the estate of the deceased

4 The deceased owned the property on which the parties resided at the date of his death. That property has been valued at $400,000 and the evidence before me indicates that it has been on the market for some time. That value was given as at 18 August 2005. Recent indications from agents indicate a more likely selling price is $375,000 which would provide a net sale proceeds of $360,525. The plaintiff has paid administration costs and general costs amounting to $8,044.16. This leaves a net balance of the estate of $352,480.84.

5 The plaintiff also received certain jointly owned property held by her and the deceased. This included a Toyota Lexus car valued at $4000 which is no now nine years old and bank accounts having a total value of $38,165.98

Family history

6 The deceased was born in 1932 and the plaintiff on 22 May 1942. The deceased’s first child, Helen, was born in March 1958, his second child, Margaret, on 8 September 1959. His third child, Deborah, was born on 6 July 1965. The deceased had an adopted son, Raymond, who was born on 13 June 1962. He received no benefit under the estate of the deceased. He has been given notice of the proceedings and makes no claim.

7 The plaintiff had two children Anthony born in 1964 and David who was born in 1967. She migrated to Australia with her husband in 1967 but was divorced from him in 1971.

8 In 1974 the deceased and his late wife built a three-bedroom fibro home on 26 acres at Dyers Crossing and they moved into the home with the children. The deceased wife died in 1976.

9 It was on 15 July 1978 that the plaintiff married the deceased. The plaintiff moved into the property at Dyers Crossing. The plaintiff’s children, Anthony (aged 14) and David (aged 11) also moved to the property with the plaintiff. The deceased’s children Helen (aged 20), Margaret (aged 18) Raymond (aged 16) and Deborah (aged 12) were also living at the property.

10 The plaintiff owned a car and household effects and the deceased owned the property at 140 Wright’s Lane, Dyers Crossing, its contents, some stock and a vehicle. A second hand shed was purchased and erected as a separate bedroom for her sons, Anthony and David. The deceased was not in employment at this time and was in receipt of an invalid pension.

11 In approximately late 1978 or early 1979 the plaintiff’s son, Anthony Steadman then aged 15 left the Dyers Crossing property and commenced to live with plaintiff’s mother in Taree. In 1979 the deceased’s adopted son, Raymond Rayner, left the property but returned to live with parties at intervals when he obtained work in the area.

12 In 1980 the deceased suffered two heart attacks and experienced heart trouble for the rest of his life. At about this time the plaintiff says that her ex-husband ceased forwarding child support for her son, Anthony.

13 In 1982 the deceased’s daughter, Margaret Rayner, left the property at Dyers Crossing and subsequently settled at Kotara near Newcastle. She did not marry. In 1983 the plaintiff’s son, David Steadman, left the property at Dyers Crossing.

14 The plaintiff gave her son, David Steadman, the child support payments she received from her ex-husband from this time until these ceased in 1984. He subsequently married and settled in Hamilton, Victoria.

15 In 1984 the deceased’s daughter Deborah Emerton left the property at Dyers Crossing. She had married and settled at Croki near Taree where she lives with her husband and three children.

16 In 1985 the deceased’s daughter, Helen Lambert, left the property at Dyers Crossing. She subsequently married and has five children. The parties thereafter lived alone at the Dyers Crossing property.

17 In 1994 the plaintiff and the deceased commenced to conduct a business, R & P Rayner Distribution, from the property. This business involved wholesaling of drycell batteries and photographic film to garages and shops between Port Macquarie and Newcastle. The deceased handled sales and plaintiff attended to bookwork, telephone and orders.

18 In 1996 they sold R & P Rayner Distribution for $30,000 or $40,000. The deceased effectively retired from this time and they commenced receiving Centrelink benefits.

19 In 1997 the deceased’s daughter Margaret Rayner retired from her employment as a dietary food technician due to ill health. She then in 2000 purchased a property at 185 Grinsell Street, Kotara for approximately $142,000.

20 It was on 12 April 2000 that the deceased executed his last Will.

21 In May 2000 the plaintiff’s mother came to live with parties at Dyers Crossing. The mother gave the plaintiff $10,000 which she invested in her name with the interest being paid into a joint account with the deceased. The deceased died as I have mentioned on 1 June 2001.

22 The plaintiff paid solicitor’s fees to obtain probate and funeral expenses totalling $8,044.16 from cash in parties’ bank accounts. She also paid Margaret Rayner $2,000 (which deceased had promised) to buy new carpet for inclusion in her home at Kotara from the plaintiff’s savings. At this time the plaintiff had a total of approximately $47,000 in savings including monies received by survivorship. The plaintiff thereafter continued to reside at Dyers Crossing and paid the rates and insurance premiums relating to the property. These total approx. $902 p.a.

23 In early 2002 the plaintiff’s mother died. The plaintiff received $38,000 from her mother’s estate.

24 In October 2001 the plaintiff instructed Di McKern, solicitor at Wingham. She approached the defendants and said she wanted to move into a small home in Taree and that she was happy for deceased’s daughters to get such property when she died.

25 On 20 November 2001 Probate of the Will of the deceased granted to defendants. It was transferred into the executrices names.

26 In April 2002 there was a suggestion that the Dyers Crossing property be rented out and the rent used to pay rent on a house for plaintiff. Deborah Emerton and Margaret Rayner sought legal advice and a document regarding the rental of a new town property was drawn but the document was unacceptable to the plaintiff.

27 In November 2002 the plaintiff instructed her solicitor to draw an agreement which was done and she forwarded this document to Deborah Emerton and Margaret Rayner. That document provided for the substitution of a house in town for the property held by the estate with the plaintiff having a similar life interest or right of occupation. This proposal did not proceed as apparently the defendants had advice during 2003 that it was not in their interests to sign it.

28 In early 2003 the plaintiff says that her back condition (osteopenia) began to worsen and she has bad arthritis in her back and hands. I accept this evidence of the plaintiff.

29 In December 2003 the plaintiff met Stan Dekleva. The plaintiff gave evidence that Stan Dekleva thereafter stayed occasionally overnight at Dyers Crossing. At most it would be once a week and apparently he mowed her lawns and did odd jobs. I am satisfied on the evidence before me that they are not in a relationship other than what could be called casual friends. Mr Deklava is in his seventies.

30 It was in June 2004 that the plaintiff instructed her current solicitors and found out for the first time about the time limits for these applications.

31 On 27 September 2004 the summons was filed 1 year and 9 months out of time.

Extension of time

32 Because the application is out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

33 His Honour Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at ‘sufficient cause” under 16(3) of the Act the factors which one looks at include the following:-

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?

34 Apparently His Honour also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989).

35 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

36 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

37 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of “unconscionable”. He was dealing with an appeal from Master McLaughlin and he referred to the Master's comments to the following effect:-

"Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."

38 With regard to the Master’s comments, His Honour observed:

“…with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."

39 In the present case there is no question of unconscionable conduct and the beneficiaries have done nothing based upon the plaintiff’s failure to commence proceedings within time. The real question is whether there is an adequate explanation for the delay in commencing proceedings.

40 Although there were negotiations between the plaintiff and the children about the possibility of moving into town these seem to be based upon some future rather than immediate need. There is no suggestion that the plaintiff knew about the time limit for making an application until she consulted her present solicitors. In these circumstances I am satisfied that there has been an adequate explanation for the failure to commence the proceedings within time. I would propose therefore to extend the time for commencing proceedings up to and including the date of filing of the summons herein.

Eligibility

41 The plaintiff being the widow of the deceased is an eligible person. 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."

The situation in life of the plaintiff

42 The plaintiff is 63 years of age, single and has no dependants. She has cash of approximately $75,000 and is entitled to be repaid from the estate the monies advanced by her of $8044.16. She has furniture and personal effects of no great value and has a car of that is some nine years old which would normally be replaced if she could afford to do so.

43 Her health is good except for her arthritis which it makes it very difficult for her to look after the extensive garden on the property and take care of boundary fences and the associated farming activities.

44 At present she receives interest of about $80 per week and a mature age pension of $197.88 per week. She almost manages to meet her expenses with this income although plainly she leads a frugal life. She does not have many activities other than visiting her family and shopping and this is consistent with a lifestyle that she and the deceased led over the last years together. She is like many in the community who has to make do with the pension and it is quite difficult for her to do so.

45 There was some evidence to suggest that during the early part of the relationship between the plaintiff and the deceased there were arguments between them. The plaintiff concedes that the arguments arose from the friction arising in a household which was a blended family particularly as there were six children in the household between the ages of 20 and 11 years. The plaintiff says that once the children had grown up and left the property there were few disagreements. I accept this assessment by the plaintiff of the difficulties which have been referred to in evidence and they should not detract from the claim which the plaintiff makes in the proceedings.

46 It is plain that the plaintiff contributed to the best of her ability to the business which she and the deceased ran for some years. The sale of that business contributed to the cash funds which were available at the date of death. However in this case it should be noted that the house which the deceased owned was one to which the plaintiff made no financial contribution apart from the provision of some money to erect a shed on the property that served as bedrooms for her children.

47 It is necessary consider the situation in life of others who have a claim upon the bounty of the deceased. These are the beneficiaries under the deceased will.

The situation and life of Helen Lambert

48 Helen lives with her husband and her four younger children. Their five children range from nine to 18 years and presumably it is the eldest who has left home. Helen and her husband own their home which they purchased in November 2001 for $75,000. They have a mortgage on the property of $50,000. They have no savings and they own a station wagon which they purchased some years ago for $1000.

49 The eldest child has been deaf since birth and Helen receives a disability pension of approximately $165 per week. Her husband is unemployed and receives unemployment benefits. Their total income is in the order of $500 per week and out of this they make mortgage payments of $100 per week.

50 There is nothing in the evidence to suggest that her relationship with the deceased was other than normal. She has not contributed to the deceased’s property other than by her assistance, like all her sisters, doing chores around the home and farm while she was growing up.

The situation in life of Margaret Rayner

51 Margaret is 46 years of age, single and lives alone. She never married and has no children. She worked as a dietary food technician until she was forced to retire through ill-health in 1997. She used her savings in superannuation contributions to purchase her house at Kotara in 2000 for the sum of $142,000. It is now worth approximately $280,000 and is not subject to a mortgage. She owns a 15 year-old Toyota Corolla motor vehicle worth $2500. Her remaining savings of $25,000 she is retaining and she anticipates receiving a tax bill of some $5,000.

52 Margaret suffers her from a number of serious health complaints including Hirschspung’s disease, epilepsy, lupus, obsessive compulsive disorder and depression. She receives a disability pension of $265 per week and her expenses amount to $241 per week.

53 Like her sister there is nothing in the evidence to suggest that she did not have a good relationship with the deceased and that she had not contributed to the assets in the estate other than by her work as a child when she lived on the property.

The situation life of Deborah Hamilton

54 Deborah and her husband live on their dairy farm at Jones Island which they purchased in 1966. They have three children who are dependent upon them aged between 9 and 17. The oldest child Nicholas has suffered from kidney problems all his life and at one stage Deborah donated one of her kidneys to her son. Her assets consist of their dairy property, stock and plant equipment and a Gemini car giving a total value of $1,090 600. Their liabilities amount of $344,000 leaving them with net assets of $752,000. Deborah and her husband spend their time running the farm which has a total area of 159 acres and on which they run approximately 100 head of stock.

55 For the year ended 30 June 2003 and Deborah had a net loss of $1563 and her husband Craig had a taxable income of $35,493. That largely was a result of his salary or wages which he still received in that year. He has ceased work in order to assist in the farm activities and accordingly their income being only from the farm would be marginal at least.

56 Recently with the deregulation of the milk industry the amount they are receiving for their product has substantially reduced. Although they have the assets which they purchased they have substantial liabilities and difficulties in servicing those liabilities.

57 Like her sister there is no evidence to suggest that Deborah did not have a good relationship with the deceased. She has not contributed to the estate of the deceased other than by her work on the farm during her childhood years.

Discussion of the claims

58 The plaintiff in the present case seeks the provision of funds so she might buy a property in Taree near her son which property she wishes to own absolutely. 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 longstanding de facto partner has been dealt with in a number of cases.

59 In the 1970s and 1980s 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, when 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.”

60 A change in the High Court's attitude to the provision 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 1980s 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.'

61 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.

62 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.'

63 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky , 5 October 1993, unreported, the Court summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:-

'In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576.

(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse ( or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70.

(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.

(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant ; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop (deceased) (1987) 8 NSWLR 679 (SC); Churton v Christian & Ors (1988) 13 NSWLR 241 (CA) 252.'

64 When talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott , unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased.

65 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.'

66 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 case, 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. “

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

68 The plaintiff says she is lonely living on the property out of town and naturally wishes to move into Taree to be close to her son. He lives in a suburb on the eastern side of the town. Her arthritis makes it difficult for her to maintain her extensive garden and the property. She finds driving on the Pacific Highway difficult as the lights from the trucks bother her. She would have no difficulty in driving in the town of Taree at night but she does not want to drive on the open road at night. It is of course appropriate that she have provision to allow her to live in Taree.

69 The plaintiff has expressed a desire to be independent and to own her own home so that in the future she may make decisions about her care in other accommodation once she is not able to look after herself in her own home. In these circumstances it seems to me that if the estate can accommodate such a proposal it would be appropriate to assist her to own her home absolutely.

70 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".

71 They 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.”

72 Palmer JA concurred with these sentiments.

73 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. ”

74 In the present case the net proceeds of sale after repayment of the estate debt to the plaintiff are likely to amount to approximately $352,000. The parties’ costs, admittedly on an indemnity basis for both parties, amount to $67,629 which leaves an estate of about $284,000.

75 The plaintiff agreed that all she required in Taree was a two-bedroom house with a garage in good order so that she did not have to spend money on its repair. There was evidence from a Mr Reed a registered valuer that in Taree a typical two-bedroom home within walking distance of shops and in good condition would have a price range of $160,000 to $200,000. Internet searches were tendered to show the availability of homes and prices in Taree which generally confirm the range starting at $150,000 up to $220,000.

76 The plaintiff submitted that she that she should be given a figure at the higher end of the range together with relocation costs of $11,000 and $15,000 in order to replace the car. Such an order would mean there would be little if anything left over for the children of the deceased.

77 This is a matter where there are only limited funds in the estate. The second marriage between the plaintiff and the deceased was for 23 years and although and the plaintiff contributed some funds to the estate, namely, the sale price of part of the business, she did not contribute in any meaningful way to the main asset in the estate. All these funds came from the deceased and his former wife.

78 The deceased’s children live in circumstances which are not affluent and indeed in some circumstances are quite straitened. The plaintiff also has to manage on the pension but at this stage she has savings of some $86,000. Although the plaintiff has a substantial claim it is not such that it should be recognised to the exclusion of the entitlements of the children of the deceased. If she wishes she can trade her present car on a new car which will cost in the order of $15,000. The amount of the trade in is not known but something would be obtained

79 The plaintiff will have relocation costs of approximately $10,000. Considering all matters an appropriate provision for the plaintiff would be that in lieu of the provision for her in the will of the deceased a right of occupancy in the deceased’s property that she should receive a pecuniary legacy in the sum of $160,000. Such a legacy will enable her to make provision for her accommodation in Taree at a modest level and if she wishes to replace her car.

80 The orders I make are as follows:

1. In lieu of the provisions for the plaintiff in clause 3 of the deceased’s will of 12 April 2000 the plaintiff receive a legacy of $160,000.

2. Such legacy shall bear interest at the rate provided for under the Wills Probate and Administration Act on and from the date of the realisation of the deceased property by completion or 12 months from the date hereof whichever event shall be the earlier.

3. The plaintiff’s costs on a party and party basis and the defendants’ costs on an indemnity basis are to be paid or retained out of the estate of the deceased.

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