Reid v Carnes
[2024] TASSC 42
•19 August 2024
[2024] TASSC 42
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Reid v Carnes [2024] TASSC 42 |
| PARTIES: | REID, Kayla Jane |
| v | |
| CARNES, Tracey Maree in her capacity as Administrator of the Estate of Jason Michael Reid | |
| FILE NO: | 135/2023 |
| DELIVERED ON: | 19 August 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 20 May 2024 |
| JUDGMENT OF: | Daly AsJ |
| CATCHWORDS: |
Succession – Family provision and maintenance – Criteria for determining application – Family provision claim
made by adult daughter – Surviving spouse or partner
Testator's Family Maintenance Act 1912 s 3(1)
Aust Dig Succession [1427]
REPRESENTATION:
Counsel:
Applicant: P Zeeman Respondent: D Zeeman
Solicitors:
Applicant: Murdoch Clarke Respondent: Butler McIntyre & Butler
| Judgment Number: | [2024] TASSC 42 |
| Number of paragraphs: | 53 |
Serial No 42/2024 File No 135/2023
KAYLA JANE REID v TRACEY MAREE CARNES
in her capacity as Administrator of the Estate of Jason Michael Reid
| REASONS FOR JUDGMENT | DALY AsJ 19 August 2024 |
| Introduction |
1 This is an application made under the Testator's Family Maintenance Act 1912 ("the Act"), s 3 in relation to the estate of Jason Michael Reid. Mr Reid died on 18 December 2021, without leaving a will. He was survived by his daughter Kayla Jane Reid (the applicant) and his spouse, Tracey Maree Carnes (Ms Carnes). Ms Carnes is Mr Reid's spouse for the purposes of the Intestacy Act 2010 because for more than two years before he died, they had been in a significant relationship within the meaning of the Relationships Act 2003, s 4.
2 On 24 November 2022, letters of administration were granted to Ms Carnes, allowing her to deal with Mr Reid's intestate estate. On 18 January 2024, the applicant brought this application for provision to be made out of the estate of her late father.
The Testator's Family Maintenance Act and some relevant principles
3 The jurisdiction of the Court to make an order for further provision, as sought by the applicant, is contained in the Testator’s Family Maintenance Act 1912, s 3, which relevantly provides in subs (1):
"3 Claims for maintenance against estate of deceased person (1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
4 The process for the determination of this application involves two stages. The first stage involves making a finding of fact: whether the applicant was left "without adequate provision for [her] proper maintenance and support". I refer to it as the jurisdictional question because unless this is answered in the applicant's favour, the Court has no jurisdiction to proceed any further and to make the order which the applicant seeks. If the applicant does not succeed on the jurisdictional question, the second stage is not reached. However, should the second stage arise, it requires the Court to engage in a discretionary exercise to determine what provision ought to be made.
5 In order to determine the jurisdictional question, I apply the following principles:1
•
A child of the deceased is entitled to bring an application for provision out of the estate: the Act s 3A(b).
•
The jurisdictional question is to be answered as at the date of the deceased person's death: Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494.
•
The jurisdictional question is to be considered from the perspective of a wise and just testator: Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479.
•
The deceased person is assumed to have been aware of all the relevant circumstances of those having a claim on his bounty at the date of his death, including all the eventualities that he might reasonably have foreseen if he knew all the facts: Litchfield v Smith [2010] VSC 466 at [26]; Hughes v National Trustees, Executor & Agency Co of A/asia Ltd (1979) 143 CLR 134 at 147-148.
•
The jurisdictional question requires that consideration be given to all relevant circumstances and in particular to:
o the applicant's financial position; o the size and nature of the deceased's estate; o the totality of the relationship between the applicant and the deceased; and o the relationship between the deceased and other persons who have legitimate
claims upon his bountySee Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210.
•
Even though it involves making value judgments, the jurisdictional question is strictly one of fact: Singer v Berghouse (above) at 210.
•
Consideration of the jurisdictional question requires the Court to connect the general, but value laden language of the provision to prevailing community standards: Vigolo v Bostin [2005] HCA 11, 221 CLR 191 per Gleeson CJ at [25].
•
The word "proper" means proper in all the circumstances of the case, including the standard of living enjoyed by the applicant and those having competing claims, the need for assistance and the extent of the testator's ability to meet the claims: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572.
•
The word "adequate" is concerned with the quantum of the provision which should be made so that the provision is proper: Bosch (above) at [476].
•
The concept of "adequacy" has a close association with (albeit not equating to) the applicant's financial need. It is proper to enquire whether the applicant has a relevant need of maintenance, but that enquiry must not be too narrowly focused; Collins v McGain & Anor [2003] NSWCA 190 at [42].
•
The word "maintenance" may imply mere continuity of a pre-existing state of affairs or provision over and above mere sufficiency and the word "support" may imply provision beyond bare need: Vigolo (above) at [115].
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•
There is a ‘broad, general rule’ that in the absence of special circumstances, and if assets permit, a spouse should be left secure in the matrimonial home with sufficient funds to continue to live in the style to which she is accustomed and with a buffer to meet contingencies: Luciano v Rosenblum (1985) 2 NSWLR 65, Burdon v Burdon [2019] TASSC 31 [19]-[20]; Gargano v Coves [2018] NSWSC 985 at [160].
The deceased estate
6 It is common ground that for the purposes of this application, Mr Reid's estate is of modest value, in the sum of $420,000. That amount is less than the statutory legacy of $444,273.59 to which Ms Carnes would be entitled under the Intestacy Act 2010 (before interest, calculated from the first anniversary of Mr Reid's death). It is common ground that the estate consists of:
- the house at 4 McShane Road in Bridgewater; - cash to the value of $1,607.29; and - household goods and personal effects valued at $3,000.
The deceased
7 The deceased was aged 50 at the date of his death, having been born on 14 July 1971. At the date of his death he was in a relationship with the respondent. There were two stages of the relationship: between 2005-2008 when the couple lived together at 4 McShane Road; and between 2013 and the date of Mr Reid’s death. In 2008 the relationship broke down but it was rekindled in about 2013. Mr Reid was a carpenter by trade. In 2007 he suffered a bleed on his brain, seizures, and a broken back, after which he received a disability support pension. Mr Reid also suffered from alcohol addiction. In late October 2020 Mr Reid became ill and in 2021 a large tumour was discovered in his throat, for which he received treatment including radiation therapy, chemotherapy and he had breathing and feeding tubes inserted. On 13 December 2021 Mr Reid's health took a bad turn and he found it very difficult to breathe. While he was being taken to the hospital by ambulance, Mr Reid suffered cardiac arrest and he required resuscitation. Mr Reid was subsequently admitted to hospital where he died on 18 December 2021.
The applicant
8 The applicant is aged 29, born on 21 June 1995. She was aged 26 at the date of her father's death. She is in a de facto relationship with Mr Ryan Brodribb and they have two children, aged 5 and 6 (they were aged about 2 and 4 at the date of Mr Reid's death).
9 The applicant has been in full time employment with Bunnings for about 10 years and she presently earns $54,000 per annum ($1,650 net per fortnight). Her partner is also in full time employment, earning $82,000 per annum gross ($5,000 net per month). The applicant and her partner are the registered proprietors of their home in Dysart, which was purchased in April 2024 for the sum of $565,000. At the date of Mr Reid's death, the applicant and her partner lived in their own home at Bagdad; but in April 2024 they sold the Bagdad property for $495,000. The proceeds of sale were $143,167.02 and $91,437.99 was applied to the purchase of the Dysart property and with the balance, the couple paid off their personal loans. The applicant and her partner now have a mortgage of $504,238.61, with monthly payments of $3,200.
10 In addition to the mortgage repayments, the applicant has family expenses in the approximate sum of $1,630 per fortnight. The applicant has about $30,000 in her superannuation account and her partner has about $50,0000 in his. The applicant's partner owns a motor vehicle worth $28,000 which the applicant uses; and separately, he is supplied with a vehicle for his use by his employer.
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11 The applicant, her partner and their children are all in good health.
12 Even though the applicant's mother and Mr Reid separated when she was only 1 year old and she lived with her mother, the applicant saw her father regularly and he was always in her life.
The respondent
13 Ms Carnes was born on 14 October 1972. She was aged 49 at the date of Mr Reid's death and 51 at the date of the hearing. She has one adult son, Bayne. Ms Carnes commenced her de facto relationship with Mr Reid in 2005. Ms Carnes' son Bayne (born in 2000 then aged 5) also moved in to McShane Road. Their relationship broke down in 2008 but recommenced in 2013 and continued until Mr Reid's death in 2021.
14 At the start of their relationship in 2005, Ms Carnes was working as a cleaner and Mr Reid was working as a carpenter for Housing Tasmania. Ms Carnes and Mr Reid each owned their homes. Ms Carnes owned a property at Thompson Crescent which she received in 2004 in the property settlement following her separation from Bayne's father.
15 Ms Carnes said that Mr Reid had purchased 4 McShane Road in 1998 for about $52,000. However, I note that the valuation at annexure TMC-1 to Ms Carnes' affidavit sworn 11 July 2023 indicates that it was purchased on 30 October 1998 for $48,000. In 2005 Ms Carnes moved into McShane Road with Mr Reid. In 2006 she sold Thompson Crescent and received approximately $50,000 as the proceeds of sale. Ms Carnes said she used some of that money to pay some of Mr Reid's debts, being "rates and taxes" because there was a court order regarding those debts and Mr Reid's property was at risk of being sold.
16 In 2006, the house at McShane Road was run down and needed significant work to be done. Mr Reid's contract with Housing Tasmania had ended and he and Ms Carnes agreed that she would use $7,000 from the proceeds of sale of Thompson Crescent to pay some of Mr Reid's mortgage, so that Mr Reid would not need to make any mortgage payments for one year while he was unemployed and so he could focus his time on renovating McShane Road. As these arrangements were put into effect, Ms Carnes used additional money from the sale proceeds of Thompson Crescent to fund the renovation of McShane Road. Ms Carnes said that she purchased all the building materials, but Mr Reid did “most of the work”. Ms Carnes said that she "did the interior". I infer that involved further expenditure by Ms Carnes from the sale proceeds from the sale of Thompson Crescent. Ms Carnes also said that she had paid for a substantial number of improvements to McShane Road since 2005 (listed at para 19 of her affidavit sworn 12 May 2023).
17 While the renovations were being done at 4 McShane Road, Ms Carnes said that she and Mr Reid used the income from her employment to pay their living expenses.
18 In 2007 when Mr Reid suffered the brain injury, seizures and broke his back, Ms Carnes assumed the role of being “his main carer” and assisted him while he recovered, but later that year their relationship broke down to the extent that in about 2008 they separated. Ms Carnes said that to protect the significant contribution she had made by that stage to their home at McShane Road, she lodged a caveat on the title.
19 Ms Carnes said that she and the deceased always referred to McShane Road as "our house". She said that they discussed changing the house out of Mr Reid's sole ownership, but it never happened. In cross-examination she said:
"It was just discussed that I wanted something that stated that this is our house. We didn't – I don't know how, what paperwork, what thing – it never went any further. I put the caveat on it to protect my – my investment in the property."
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20 Ms Carnes did not commence any court proceedings in relation to the interest which she was protecting by lodging the caveat. During cross-examination by counsel for the applicant, Ms Carnes said:
"… I knew – well no, I didn't follow through, I knew it protected me. It was there, it protected me, it – yeah, I did it as a – as – I – protected me to see what the future was going to bring. I didn't know. It was a break-up, didn't know what was going to happen. Like, I didn't want to over-react, didn't want to under-react, I didn't know what to do. I was protecting my – me.
And you were happy to let it just sit there for years?......We continued to leave it sit there even after we got back together in 2013, yes."
21 For the next five years, Ms Carnes rented privately in Brighton, but in about 2013, she and Mr Reid re-kindled their relationship and she moved back into 4 McShane Road in early 2014. Their relationship endured until Mr Reid passed away.
22 In 2013 when Ms Carnes' relationship with Mr Reid resumed, she was employed as a payroll officer for the Department of Health and Mr Reid was on a disability pension due to his previous injuries. Ms Carnes describes herself as the breadwinner who paid most of their bills. Ms Carnes said that during their relationship she did all of the cooking, cleaning, laundry and gardening. Ms Carnes said that their relationship was wonderful and they cared for each other deeply.
23 When their relationship resumed in 2013, Ms Carnes' son Bayne also moved back in with them and they decided to build a room for him to live in at the rear of the house which, at the date of the hearing, was still where Bayne was living save for some time spent away at his girlfriend's house more recently. The house at 4 McShane Road and the "sleep out" building is depicted in photographs in the valuation at annexure TMC-1 to Ms Carnes' affidavit sworn 11 July 2023.
24 When speaking of the initial decision to move from Thompson Crescent in to McShane Road, Ms Carnes said that “Jason and I decided to sell my house at Thompson Crescent and use the money to do renovations to McShane Road as it was run down and needed significant work done to it”. She said "it would become our house. We would do it up. It was even – and then we’d sell that and then buy our dream home, and it never happened. It never happened. We got to the - used the money to start doing it up, the break up [came], and the rest didn't happen."
25 Ms Carnes said that after she and Mr Reid resumed their relationship and they discussed that they would not be selling McShane Road and buying another "dream home", she said they decided that they might as well just make McShane Road their ‘forever home’, in which to grow old together. Ms Carnes said that Mr Reid was very happy there; he was close to his mates and he had his shed and she was fine with that. x
26 In 2019, Ms Carnes contracted Graves Disease, as a result of which she underwent orbital decompression surgery and she spent nearly a year recuperating. Ms Carnes said that during her recovery, her mother was caring for her but that was cut short because in July 2019 she died in a car accident. Ms Carnes said that as a result, she suffered major depression. Due to her health issues, Ms Carnes said that she used up all her the sick and personal leave entitlements available to her through her employment and had no choice but to resign from her employment as a payroll officer with the Department of Health in July 2020.
27 Ms Carnes said that in 2020 Mr Reid fell ill and this illness progressed during 2021 to the point where a large tumour was discovered in his throat. Thereafter, Mr Reid required treatment and care, with Ms Carnes providing the latter. Ms Carnes said she did everything to ensure that Mr Reid was happy and "looked after". Ms Carnes was with Mr Reid on the morning of 13 December 2021 when
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his illness worsened and she called an ambulance to take him to hospital where he died on 18 December
2021.28 Prior to Mr Reid's death, during the period in 2020 and 2021 when both Ms Carnes and Mr Reid were unwell, Ms Carnes successfully applied for $20,000 to be released from her superannuation account due to the hardship associated with their living costs.
29 At the date of Mr Reid's death, Ms Carnes was still living at 4 McShane Road, which was still registered in the deceased's sole name despite her significant contributions over the years since 2005, with the caveat remaining on the title. At the time of the deceased's death, both Ms Carnes and her son were reliant on him for accommodation. She was unemployed and in receipt of a Centrelink allowance of $500 per fortnight, due to her health issues and her status as a carer for Mr Reid. Ms Carnes had no savings. She owned a 2005 Toyota RAV4 worth $5,000. Ms Carnes has no other assets or liabilities and her fortnightly expenses are between $600 and $700.
30 Since Mr Reid's death, Ms Carnes' father has given her a vehicle worth about $20,000. Ms Carnes' affidavit sworn 11 July 2023 stated that she has also borrowed about $16,500 from her father in order to pay legal fees to obtain the grant of letters of administration for Mr Reid’s estate and in relation to this litigation. Ms Carnes says she has no means to repay her father the $16,500. Even so, she said she does not intend to stay unemployed and as soon as her mental health improves, she intends to return to work. In her oral evidence at the hearing Ms Carnes said that she had recently accessed a further $10,000 from her superannuation account in order to pay legal fees for her representation in this litigation.
Other Evidence
31 Debra Kylie Reid is the applicant's aunt and Mr Reid's sister. She said that "Jason always stated that the property was for Kayla if he died and refused to make any change." She said that Mr Reid was always very independent, doing his own cooking and cleaning, and that Ms Carnes only looked after him for a short period when he was very unwell. During cross-examination Ms Reid said that her friendship with Ms Carnes ended at around the time of her brother's death. She lived next door to Mr Reid and Ms Carnes. She understood that her brother had a problem with alcohol and that “he drank a lot. A lot, every day”. Ms Reid said that the house at 4 McShane Road was spotless, "before and after Tracey".
Consideration
32 In relation to Ms Carnes' contributions towards the estate, I accept the submission that she has made considerable contributions even though the monetary value of her contribution cannot be established with any precision. In the overall assessment of the relationship between Mr Reid and Ms Carnes, it was one of mutual long-term commitment, despite the relationship breaking down for the period between in about 2008 and 2013.
33 I accept Ms Carnes' evidence about the financial contribution she made to the home at Bridgewater despite not being registered on the title. That was significant because of the nature of the fund from which those contributions were made and continued after the resumption of their relationship in 2013, including the purchase of the materials used in the construction of the sleepout or studio as it is referred to in the valuation report. I also take into account that until she resigned from her employment in 2019 she was the breadwinner in her relationship with Mr Reid and she paid for most of the bills. I accept Ms Carnes' evidence that during the period of the resumed relationship in 2013 until his death, she did all of the cooking, cleaning, laundry and gardening because Mr Reid did not like to contribute to these house responsibilities.
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34 I accept that Ms Carnes discussed the caveat with Mr Reid in the context that she lodged it to protect her investment in the property when they first separated. I accept her evidence that she told Mr Reid she wanted her name on the title because of that.
35 I accept Ms Carnes’s evidence about the contributions she made to the property and to the relationship from time to time as outlined above, including that she withdrew $20,000 from her superannuation account during 2020 and 2021 in order to help them both with their living costs during the period where they were both unable to work because of their health issues and when she was caring for Mr Reid while he was receiving treatment for cancer.
36 In relation to Ms Debra Reid's evidence that Mr Reid said that 'the property was for Kayla if he died', there is no evidence about the timing or circumstances in which Mr Reid stated that. That must be assessed in light of the fact that Mr Reid is taken to know of the existence of the caveat at the date of his death; and in light of Ms Carnes' evidence that she discussed it with Mr Reid and that he took no step to have it removed. I accept Ms Carnes' evidence that she and Mr Reid discussed that she "wanted something that stated this is our house" and that Mr Reid would say "yeah, yeah and then just not do it."
The applicant's financial position
37 At the date of Mr Reid’s death, the applicant was a young, and healthy woman who is in a stable relationship with her long-term partner with whom she is raising their two young children. Both the applicant and her partner were (and remain) in full-time, secure, long-term employment. These circumstances support a finding that the applicant is reasonably financially secure, subject of course to their home loan which is a debt secured by a mortgage over their home. These were the circumstances as at the date of Mr Reid's death and at the date of the hearing.
38 While there is always the possibility that a person in the position of the applicant might change for the worse, at the date of Mr Reid's death there was nothing reasonably foreseeable which might adversely impact the applicant's financial position. Indeed, it can be seen that the applicant's financial position was secure at the date of Mr Reid's death and it remains so.
The respondent's financial position
39 The respondent is a single unemployed woman who is suffering from poor mental health which prevents her from returning to work although she is willing to do so when her mental health improves. She has no savings. Her superannuation account has been depleted over the years through applications for early release of funds on account of hardship. At the date of Mr Reid's death she was in receipt of Centrelink Newstart allowance of $500 per fortnight due to health issues and the care that she provided Mr Reid during his illness. I also have regard to the fact that the valuation report indicates that the home at 4 McShane Road is in need of repairs, maintenance and refurbishment.
The size and nature of the deceased's estate
40 The estate consists essentially of a single asset: the house at 4 McShane Road, Bridgewater. The valuation at annexure TMC-1 to Ms Carnes' affidavit sworn 11 July 2023 at par 7.0 indicates that it was purchased in 1998 for the sum of $48,000. It remains subject to a mortgage although when he died, Mr Reid did not owe any money to a bank. The house at 4 McShane Road is a three bedroom, one bathroom house with a detached double garage, together with a shed and sleepout, (the dwelling built for Bayne). The house is in need of some internal and external maintenance and repairs. It was valued at $400,000 at the date of Mr Reid's death; and $420,000 as at the date of the report on 14 June 2023.
Totality of the relationship between the applicant and the deceased
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41 It is common ground that the relationship between the applicant and her father was a good one. Counsel for the respondent accepted that it was a normal father-daughter relationship of a kind where they did not live together during the applicant's childhood.
42 Obviously the deceased made no provision for his adult daughter, even in circumstances where from early 2021 he knew he was quite unwell. Mr Reid knew that his daughter was employed and had a young family, as he would often visit her at work and he had met Karter (his grandchild).
Relationship between the respondent and the deceased
43 The relationship between Mr Reid and Ms Carnes is a significant factor weighing against the applicant's claim. Under the Intestacy Act 2010, Mr Reid's estate passed entirely to Ms Carnes, in a value less than the statutory legacy provided in that Act. One of the purposes of the Intestacy Act 2010 is the avoidance of unfairness to a spouse caused by intestacy, by ensuring that she might continue to live in the manner to which she has become accustomed and to avoid the related expense and domestic unpleasantness of a family provision application: see the Second Reading Speech of the Intestacy Bill 2010 and the National Committee for Uniform Succession Laws report to the Standing Committee of Attorneys-General of March 2007, paragraph 4.33 at page 64.
44 Ms Carnes made a substantial financial contribution to the major asset of the estate – the home at 4 McShane Road over the duration of the relationship viewed as a whole. Ms Carnes also provided care for Mr Reid during his periods of illness and she maintained the home and paid the bills as the breadwinner when she was in employment. Significantly, that involved paying for the building materials and the interior renovations in 2005-2006, the payment of one year’s mortgage payments in about 2006, and the payment of the couple’s living expenses from the money released from the superannuation account during 2020-2021 when both Ms Carnes and Mr Reid were unwell. At the date of Mr Reid's death, Ms Carnes was dependent upon the estate for her accommodation. These are significant considerations.
Duty to a spouse
45 It is common ground that Mr Reid had a "moral duty" to Ms Carnes, as a just and wise testator, to make proper and adequate provision after his death for the support of his spouse, as stated in Bosch v Perpetual Trustee Company Limited [1938] AC 463 at 469 and see the discussion in Kapodistrias v Kapodistrias [2022] TASFC 10 at [60]-[65] per Porter AJ with whom Pearce J and Brett J agreed. Counsel for the respondent referred me to Luciano v Rosenblum (1985) 2 NSWLR 65 at 69, where Powell J stated the 'broad general rule' that in the absence of special circumstances, the general duty of the deceased to his spouse, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and with a buffer to meet contingencies: see also Burdon v Burdon [2019] TASSC 31 [19]-[2-]; Gargano v Coves [2018] NSWSC 985 at [160]. Counsel for the applicant then referred me to the decision of the New South Wales Court of Appeal in Marshall v Carruthers [2002] NSWCA 47 where Young J (Hodgson JA and Palmer J agreeing) stated:
"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."
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46 I have approached this case on the basis that the applicability of the broad general rule will depend upon the circumstances of each case. Further, the application of the "rule" in this case where there is an acknowledged moral duty by the deceased to his spouse, involves no more than the application of the principles set out at par [5] above in relation to the concepts of prevailing community standards, and what is concerned with the concepts of what is "adequate" and "proper", "maintenance" and "support" in light of the facts of this case. I think that this was ultimately the approach advocated by both counsel.
Determination
47 The moral claim made by the applicant is not sufficient. In my view she has not been able to demonstrate relative need. The applicant is capable of supporting herself reasonably comfortably and is likely to be able to do so for the foreseeable future. There were no reasonably foreseeable eventualities relating to the applicant. of which Mr Reid ought to have been aware, the kind referred to in Hughes v National Trustees, Executor & Agency Co of A/Asia Ltd (above). I am not satisfied that the applicant has demonstrated that her father breached his moral obligation to her to make adequate provision out of his small estate for her maintenance and support.
48 As a relatively well off applicant, Ms Reid faces a high hurdle in establishing a lack of adequate provision compared with Ms Carnes who is in more straitened circumstances. At the date of his death, Mr Reid was not required to feel duty bound to provide for his daughter out of his small estate, such as it was, having due regard to the nature of his relationship with Ms Carnes and to his daughter's financial position. At that time, the applicant was a relatively financially secure, able bodied young woman who was in a supportive relationship with her partner. That is to be contrasted with Ms Carnes' position as someone without savings, on government benefits, in poor health with only a speculative prospect of returning to paid employment in the future. Ms Carnes' contributions to the estate and her support of Mr Reid, together with her age, capacity and means have significant weight on this assessment.
49 The house at 4 McShane Road was Ms Carnes' only accommodation and it was, at the date of Mr Reid's death, a home for her son who she had brought into the relationship with Mr Reid. Mr Reid knew the precariousness of Ms Carnes’ accommodation arrangements at the date of his death. The fact that the sleep out was financed by Ms Carnes and built by Mr Reid shows his significant commitment to providing accommodation for both Ms Carnes and her son. It is evidence that he wanted to provide accommodation for them both and an acknowledgment that adequate accommodation needed to be provided for Bayne in a way that preserved and not undermined his relationship with Ms Carnes.
50 The applicant has not satisfied the Court that she has been "left without adequate provision for [her] proper maintenance thereafter". The test established by s 3 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also what is "proper" in the circumstances of the case. In all circumstances of the case, particularly the standard of living enjoyed by the applicant compared to that enjoyed by Ms Carnes, together with the limited extent to which Mr Reid had any ability to provide for both of them, there is strong support for the conclusion that the applicant was not left "without adequate provision for [her] proper maintenance and support" after Mr Reid's death.
51 The applicant submitted that if the Court exercise its discretion in the applicant's favour, it should grant the applicant a fee simple interest in half the property at 4 McShane Road so as the applicant and the respondent become tenants in common in equal shares, and that the applicant's half share be subject to a life interest pursuant to the Settled Lands Act 1884. It was submitted that Ms Carnes could thereby continue to reside in the property and enjoy the property and that she could transfer the life interest to another property in the manner set out in the Settled Lands Act 1884. It was submitted that approach would mitigate the hardship of Ms Carnes being put out of her home. Even though no occasion arises for the Court to exercise the discretion involved in the second stage of the test under the Act s 3(1), my view is that any result which meant that Ms Carnes was granted a life interest as tenant in
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common in the property at 4 McShane Road would not adequately reflect the nature and duration of her relationship with Mr Reid, nor would it adequately reflect the considerations in Singer v Berghouse (above) which I have considered earlier int these reasons. Such an approach would result in Ms Carnes being left without adequate provision for her maintenance and support.
Result and orders
52 I am not satisfied that the applicant has been left without adequate provision for her proper maintenance and support. I decline to make an order in favour of the applicant for provision out of the estate of the late Jason Michael Reid.
53 I will hear the parties further in relation to the question of costs in the event that the issue is not
agreed.
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