Rich v Rich

[2005] NSWSC 64

CITATION:	Rich v Rich & Ors [2005] NSWSC 64
HEARING DATE(S):	07.02.05, 08.02.05
JUDGMENT DATE :	16 February 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Acting Master Berecry at 1
DECISION:	See paragraph 68

CATCHWORDS:	Family provision - Entire estate to widow - Relationship of 15 years - Deceased ill throughout relationship - Nature and level of care provided by defendant - Quality of relationship between deceased and plaintiffs - Whether property should be declared notional estate - Extent of provision for plaintiffs
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Bonfield v Carrington, Master Macready, 6 April 1995, unreported McKenzie v Baddeley, Young J, 26 October 1994, unreported Re Estate of Cropley: Cropley v Cropley (2002) NSWSC 349 Luciano v Rosenblum (1985) 2 NSWLR 65 Bladwell v David (2004) NSWCA 170
PARTIES:	Stephen George Rich Nicholas Charles Rich Michael John Rich Catherine Jay Rich
FILE NUMBER(S):	SC 1923.04
COUNSEL:	G George G Burton SC
SOLICITORS:	Prentice Jarvin Lawyers, East Sydney Abbott Tout Solicitors, Sydney

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

A/MASTER BERECRY

16 February 2005

1923.04 Stephen George RICH & Ors v Catherine Jay RICH

JUDGMENT

1 CORAM: The plaintiffs, the sons of the deceased John Roebuck Leeze Rich, commenced proceedings on 15 March 2004 for orders that provision be made pursuant to s7 of the Family Provision Act 1982 from the estate, or the notional estate, of the deceased.

2 The deceased died on 16 September 2002, the proceedings therefore having been commenced within time. Probate of the deceased’s estate was granted on 25 August 2003 to the deceased’s widow, the present defendant. The deceased made his last will on 20 April 2002, under which his widow was to receive the whole of the estate. The inventory of property attached to the will for the purpose of the grant of probate disclosed that the estate had a known value of $21,782.16. Reference is made in the inventory to an interest that the deceased had in the estate of his late mother, Edna Elaine Rich. At the time the inventory was prepared, the executrix was unable to ascertain the value of that interest.

3 The plaintiffs are eligible persons pursuant to s6(1) by the fact that they are the sons of the deceased. No provision having been made in the deceased’s will for them, they now seek provision out of the estate or the notional estate.

4 But for the interest the deceased’s estate had in his mother’s estate, there would be nothing out of which provision could be made for the plaintiffs. The deceased’s mother died leaving an estate valued in excess of $2.4 million. Under the terms of her will, the deceased was to receive approximately half the estate. The main asset in the estate consisted of a property known as 15A Clanalpine Street, Mosman. That property was sold, and in May 2002 a distribution was made to the beneficiaries – see exhibit DX13. The deceased received four cheques, each in the sum of $301,500. Therefore, it is to the notional estate that the plaintiffs look for some provision to be made for them.

The plaintiffs:

5 Stephen George Rich (“Stephen”) was the eldest child of the deceased, having been born on 5 May 1962 and is 42 years of age. He was educated at Sydney Grammar School, and upon leaving school, he entered the building industry where he continues to be employed. He has spent time in the United Kingdom and New Zealand. He was married for a period of approximately five years and as result of that marriage there is one child, Sophie, born in February 1999.

6 Stephen and his former wife are divorced and there has been a property settlement. They share custody of Sophie, however pursuant to a maintenance agreement between those parties, Stephen is not liable for maintenance payments to his former wife for Sophie. Since the break down of that marriage, Stephen has rented a unit at Neutral Bay. He has Sophie on alternate weekends and has her on most days of the week. The arrangement appears to be that Sophie stays over at his place on some nights during the week and on other occasions he picks her up after school to take her to swimming lessons and the like, returning to her to her mother after dinner. Sophie and her mother reside in Mosman, and Stephen wishes to purchase a unit somewhere on the lower north shore.

7 Stephen’s annual income is approximately $73,000. He wishes to establish his own building company in the future. Stephen’s evidence was that he had a close relationship with his father, that during his school years his father would attend sporting events, notably football games, and that their good relationship continued after the break up of the parents’ marriage. His evidence was that the deceased visited him in New Zealand and was proud to become a grandfather. Stephen’s evidence was that he and his father would have lunches on a regular basis.

8 After the deceased had the fall in February 2001, his evidence is that he offered to assist the defendant in looking after the deceased. At that stage, the deceased was incapable of looking after himself and his condition never improved. The result was that the defendant became the full time carer of the deceased.

9 After the 2001 fall, the deceased lost all power of speech and was only able to communicate with people by movement of either his right hand or foot, his eyebrow, or giving some indication of what he wanted in response to questions put to him. Stephen’s evidence was that the defendant rejected his offer of help. However, there was evidence of two matters in particular, that Stephen offered assistance, namely the building of a wheelchair ramp and providing the defendant with a generator. Notwithstanding these offers made by Stephen, they were never followed through.

10 Stephen visited his father both at Royal North Shore Hospital and Coorabel, however, he conceded that his visits in 2002 were irregular. When re-examined on that point, the response he gave was that his marriage had broken down and much of his time was spent to revive the marriage. Stephen acknowledges that the defendant was a good carer for the deceased and, in his words, the defendant “looked after Dad on a 24 hour basis – an amazing feat”.

11 Stephen’s opinion is that his position would be far more secure if he ran his own business rather than working as an employee or as a contractor in the building industry.

12 Currently, Stephen’s assets amount to $157,000 – the only significant assets being $55,000 cash in the bank and a Toyota Landcruiser valued at $42,000. His only liabilities are a loan on the Landcruiser of $20,000 and a credit card debt of $6,000. He, therefore, has net assets of $131,000. However, he ascribes a value of $60,000 to his personal effects and household goods. One must question whether or not that is an appropriate valuation. Stephen’s monthly expenditure leaves him in a position where he has a surplus of income over expenditure of approximately $30.

13 Nicholas Charles Rich (“Nicholas”) was the second child of the deceased’s first marriage, and was born on 25 February 1966, and is currently aged 38 years. Like Stephen, Nicholas had a private school education. As with Stephen, the deceased was interested and supportive of Nicholas in his sporting pursuits. Nicholas sailed with a crew of an 18 foot skiff on Sydney harbour and the deceased regularly attended those events. Nicholas has led a troubled life, he was dependent on drugs in his younger days and eventually went on a program to free himself of the drug addiction which he successfully achieved. He was in fact so successful in this that he is currently employed as a counsellor with the Northern Sydney Area Health Service working from Royal North Shore and Manly Hospitals. His present position is that of manager of a health service for drug users.

14 Although married, he and his wife have separated, and it had been a desire to adopt children. He was cross examined on this matter and conceded that, as a result of the separation and the unlikelihood that they will resume the marriage, and having regard to his age, the chances of being able to adopt are fairly remote. Even if he and his wife resume the marriage, there is a possibility that they will have to wait a further three years before an adoption order could be made. Both Nicholas and his wife have been undergoing psychoanalysis for some time. Nicholas wishes to continue these sessions indefinitely and, although separated from his wife, he would like to support her financially in respect of her psychoanalysis.

15 Although he married in 2001, he had formed a close relationship with his wife in about 1992. However, prior to meeting his wife, he had formed a relationship with a person called George Hayim. This relationship continued to 1990, and then between 1990 and October 2004, they continued to see each other on a regular basis. Mr Hayim has provided Nicholas with large sums of money, including an amount of $70,000 to assist Nicholas and his wife in the purchase of their home. Other amounts over a period of two years totalling just over $63,000 were also paid to Nicholas (see exhibit DX11). In respect of these sums, Nicholas’s evidence was that they were moneys to be used on renovations on Mr Hayim’s Cremorne property. Between April 2000 and October 2004 Mr Hayim made regular deposits to Nicholas’s account of either $1,000 or $1,500 per month, which payments have now ceased. Nicholas’s evidence is that Mr Hayim could at any time request repayment of the $70,000. PX1 purports to be a copy of a deed of loan entered into on 27 August 1999 between George Hayim and Nicholas. However, the deed is not signed by both parties and there is no evidence that it has been stamped, and therefore I give little or no weight to that document.

16 Nicholas’s evidence is that he had a close and intimate relationship with his father, the he visited him at St Vincents Hospital and also at his home in Woollahra. However, cross examination revealed that Nicholas did not see his father as frequently as he attempted to make out. He conceded that he did not see the deceased after 17 September 2001. In fact, from that date to the death of the deceased, he spoke to the defendant on one occasion. He made no telephone enquiries about the deceased between then and his death. In cross examination, Nicholas admitted that the defendant showed an extraordinarily level of care for the deceased after 1987.

17 Nicholas is currently earning $60,000 per year. He does not have the use of a motor vehicle at the moment, although it is clear from his evidence that he does need the use of a motor vehicle. He is still attending daily psychoanalysis sessions which are conducted at Roseville. It is very difficult for him to juggle his work time at Manly and Royal North Shore Hospitals with attendances at Roseville. He resides at Rushcutters Bay and therefore it is extremely difficult and inconvenient for him to be able to meet his work obligations and attend the Roseville appointments. Nicholas’s position has changed quite dramatically since the filing of his first affidavit. At the end of his evidence, he stated that he would like some provision made out of his father’s estate which would enable him to continue his education and to provide some sort of safety net. His evidence is that to advance within the organisation, he needs to complete a diploma. He does not currently have the funds to pay for such a course, his monthly expenditure his income by $206. Nicholas’s assets are approximately $625,000, the major asset being his matrimonial home at North Narrabeen which was given a value of $600,000. His liabilities amount to $345,000 and they consist of a mortgage to ANZ of $275,000, and a personal loan from George Hayim of $70,000. If his marriage is dissolved, he agreed that the property will be sold and, in all probability, he will receive somewhere in the vicinity of $162,500.

18 Therefore, currently his assets and liabilities are as follows: assets $167,500, and liabilities $95,000, leaving a net asset position of approximately $72,500.

19 Nicholas was not a good witness, there are a number of matters that he failed to disclose in his affidavit and which surfaced in cross examination. I am not satisfied that he deliberately set out to mislead the Court, or the defendant. Nicholas’s emotional and psychological problems seems to bear a great weight on the way in which he functions, and in my view, Nicholas could not be said to be a witness who deliberately set out to mislead and deceive.

20 Michael John Rich (“Michael”) is the youngest son of the deceased and was born on 9 November 1972. He is 32 years of age. Like his brothers, he attended a private school however, unlike his brothers, he did not attend Sydney Grammar. His secondary education was at SCEGGS Redlands. Michael commenced university in 1991 but did not complete his degree. He worked with The Sydney Morning Herald and then moved into film and television production. His current occupation is that of a key grip for Grunt Gripping Pty Ltd on a contract basis. In his evidence in chief, he described the nature of work performed by a key grip. In essence, it seems to involve responsibility for a lot of the machinery and heavy equipment that is used in television and film production (ie cranes, positioning of cameras, etc).

21 Michael wishes to start his own ‘gripping’ business. His evidence was that he would have far greater security than he presently has if he owned his own truck and equipment. Currently, although he works on a contract basis, he does not have the benefits of a subcontractor. Each contract appears to be no more than an employment contract and he goes from job to job either with one particular company, or from company to company, as and when jobs become available. His evidence was that if he had his own business he would be in a far stronger position to obtain work. He currently he has the use of a truck and equipment provided by a person from Queensland who operates four such trucks. Michael has had this facility available to him for some four years, however he is not confident that this will continue into the future. It was put to him in cross examination that, to remain in the business and to successfully remain in employment, it was not necessary for him to own his own business. It was put to him that it was partly his reputation that enabled him to work continuously in the industry. Whilst he agreed with this, his opinion was that he would be in far stronger position were to he have his own business where he owned the equipment, rather than worked for someone else or leased equipment from some other person.

22 Like his brothers, Michael had a good relationship with the deceased. His father attended his sporting activities and took a keen interest in Michael’s football. Michael attended Royal North Shore Hospital and Coorabel after his father suffered the first stroke. Between 1991 and 1996 Michael saw his father every second Wednesday. They would have lunch at a café at Woollahra. It would appear that Michael perhaps had greater contact with his father than his brothers did. Michael continued to visit his father during the later stages of the deceased’s life. Between July 2001 and his death in September 2002, it appears that he would visit every three to six weeks for one or two hours.

23 At the commencement of these proceedings, Michael was in a relationship which was moving towards marriage. Unfortunately, that is no longer the case and Michael is currently living alone in rented accommodation. His weekly income is $1,861 and weekly expenses are $1,597, leave a surplus of approximately $260. He conceded in cross examination that, having sold one motor vehicle, his liability in respect of car insurance, registration and maintenance, has been reduced, however he was unable to put a figure on that amount so it would appear that in reality he has a surplus of something in excess of $260 per week.

24 Michael wishes to buy a unit, however, because of the nature of his work, he has been unable to raise a loan with a lending institution. His evidence was that approaches that he has made have not been successful because of the uncertainty of his income stream. He, therefore, seeks provision out of the estate to enable him firstly to acquire a residence, and secondly to purchase equipment for his business.

The defendant

25 The defendant was born on 14 January 1948 and is currently aged 57 years. She met deceased whilst employed with The Sydney Morning Herald in March 1974. They commenced a relationship in August of that year. The deceased separated from his wife in February 1986 however the defendant and the deceased did not commence cohabitation at that point. On separation, the deceased returned to reside with his mother, although he appears to have stayed regularly with the defendant at her Spicer Street home.

26 The extraordinary aspect of the relationship between the defendant and the deceased was that, although by 1987 there had been a lengthy relationship, the parties did not cohabit until after the deceased suffered his stroke in June of that year. As a result of that stroke, he spent three weeks in Royal North Shore Hospital, followed by a period of 3 months in the Coorabel Rehabilitation Unit. During this time, the defendant visited the deceased on a daily basis. She continued to work, and successfully managed her work time against visiting time. Whilst the deceased was at Coorabel, the defendant would take him to her place on weekends to assist with his rehabilitation and to familiarise him with the home.

27 By and large, the plaintiffs do not dispute the fact that the defendant devoted herself to the care of the deceased from 1987 until his death. I have already recounted the comments made by two of the sons either in affidavit form or in cross examination regarding the quality of care provided by the defendant for the deceased.

28 The stroke in 1987 left the deceased paralysed on his left side. He could do some things with a degree of difficulty, for example dressing himself and providing limited assistance in the kitchen. However, he required ongoing assistance in respect of dressing and bathing, and it became apparent that he could not assist the defendant in the kitchen with the preparation of the meals because of the loss of use of his left hand. Therefore, the defendant assisted the deceased with bathing, dressing and meals whilst at the same time continuing in full time employment with The Sydney Morning Herald. She would take him to watch Michael play football on weekends. The deceased developed an interest in helping stroke victims recover from their disabilities and joined the Stroke Recovery Association, and in later years, after the defendant’s position was made redundant, she joined him at that Association doing voluntary work for a number of years. To encourage the deceased to develop other interests, they took up courses at an evening college and became involved in bird watching. They took an interest in art, attending various galleries, private and public, and joined the Art Gallery of NSW Society and the Benalla Art Gallery. They often visited country galleries on weekends and when on holidays. They subscribed to the Mainly Mozart series conducted by the Sydney Symphony Orchestra, and attended films and the theatre regularly. She encouraged him to participate in as many things as possible. They ate out regularly, either alone or with friends, attended fund raising events for the Stroke Recovery Association, and she encouraged his desire to help stroke victims re-establish their reading skills.

29 Throughout this time, he required assistance getting in and out of chairs and out of bed. As a result of this assistance rendered by the defendant, she injured her back in late 1989 or early 1990. Her evidence is that she still suffers lingering pain from this incident. By 1996 the defendant had taken on part time employment which continued until 1999 when she took full time employment for a period of two years. In cross examination, she was asked about the reasons for returning to full time employment, her response was that they needed the money.

30 In December 2000, the deceased had a fall and injured his head. In late January he was hospitalised and underwent a number of brain operations. During that time in hospital, the defendant spent 12-14 hours per day with the deceased – talking, reading to him, playing music and trying to support him. Her evidence is that both Stephen and Michael would attend the hospital 3-4 times per week, and she met Nicholas regularly on a Thursday night to give him a progress report. As a result of the operations, the deceased lost the ability to speak. A tracheotomy tube was inserted in the deceased’s throat in February 2001. In April 2001, he was readmitted to Coorabel, where he remained until approximately late July 2001. The defendant attended him on a daily basis, staying for up to 12 hours a day. During this time she undertook training from doctors and nurses so that she would be able to assist them during the recuperation period and to assist when he eventually returned home.

31 Upon the deceased’s return home in late July 2001, the defendant became his full time carer. The deceased was still unable to speak, but was conscious and aware of things around him. He was able to communicate by moving his right hand, right foot or raising his eyebrows, or a slight shake or nod of his head. There was a need to provide the deceased with ongoing medicines and the support of special equipment. The deceased funded the purchase of the equipment and supplies from her own resources by selling 50,000 she held in John Fairfax Publications Limited. She was not entitled to a carer’s pension, however she did receive an allowance of $41 per week.

32 During this period, in addition to the assistance that she had provided to the deceased, she was required to brush his teeth, shave him and change the tracheotomy tube tape. She had to prepare food to special formula and had to check the tracheotomy and apply suction to the tube to remove secretions which built up in the base. Her evidence is that on five or six occasions per night, she would have to wake to check on his condition, and to provide medication, water and food. This continued until the deceased’s death. She obtain some assistance from a nurse one night per week, usually on a Thursday night between 11.00 pm and 7.00 am. This enabled her to have one night’s unbroken sleep per week.

33 The equipment she purchased for the care of the deceased included a wheelchair, a lifter and slings, a bath chair and a special bed. During this period, she still attempted to take the deceased out to various functions.

34 The defendant’s current financial position is as follows. She holds three pieces of real property: 31/36 Fairfax Road, Bellevue Hill with an agreed value of between $700,000 and $875,000; 1/8 Tara Street, Woollahra with an agreed value of $600,000; and 11 Spicer Street, Woollahra with an agreed value of $1.5 million. She also owns a 1998 Honda CRV valued at approximately $13,000, shares valued at approximately $16,000, a Westpac cash management account with a balance of $45,963.68, a Macquarie Bank rollover fund with a balance of $41,751.30, a superannuation fund of $6,500 and a Westpac savings account of $987.47.

35 Her liabilities consist of a debt to the Australian Taxation Office of $20,000, credit card debts of approximately $1,200, and renovations to the Tara Street property of approximately $48,000.

36 The defendant’s total income amounts to $3,519.16 per month. That does not however take into account the potential rental income in respect of Tara Street. That property is currently under renovation and is expected to be available for rental within the next two or three weeks.

37 The defendant’s outgoings in respect of the real property amount to $1,934.13 per month and her cost of living expenses amount to $3,217.56 per month. It is her intention to continue her education and her evidence was that she has been accepted at the University of Newcastle where she hopes to commence in the next semester. The cost of undertaking a course at that university will be approximately $4,000.

38 The deceased made his last will on 20 April 2000, on which probate was granted on 25 August 2003. The inventory of property thereto shows that the estate was valued at $21,782.16 and an interest in the estate of his late mother, and that he held joint property valued at $24,251.81. The jointly held property was held with the defendant and consisted of the Honda CRV motor vehicle and an account with Westpac in the sum of $2,251.81. From the deceased’s mother’s estate, on or about 9 May2000 he received four cheques, each in the amount of $301,500, giving a total of $1,206,000.

39 The defendant had a power of attorney from the deceased. When funds were received from the deceased’s mother’s, she applied those funds to the purchase of the Fairfax Road unit for approximately $940,000. That unit was purchased in her name. She spent approximately $25,000 on improvements and repairs to the Spicer Street property which they resided in, she purchased $6,000 worth of shares in d’Agular Gold Limited. The defendant’s evidence was also that she paid a number of debts and living expenses from those funds. The balance of those funds was invested in the Westpac cash management account. It has been readily conceded by counsel for the estate that if an order is made for provision for one or all of the plaintiffs, that the only assets of the estate that would the subject of any order would be the assets that the deceased was entitled to from his mother’s estate.

40 The defendant’s evidence was that the plaintiff was aware of the death of his mother and of his entitlement under her will. He was also aware of the funds being made available and, according to the defendant, she mentioned to him that she had located a suitable property at Fairfax Road for the purposes of investment. Her evidence was that, prior to 2001, she and the deceased had discussed what he would do with any moneys he ultimately received from his mother’s estate, and that they had agreed to set aside funds to purchase an investment property.

41 However, whilst the defendant informed the deceased of the above matters, she did not place the Fairfax Road property in his name. The property has been placed in her name and therefore the Fairfax Road property, together with any funds invested in the cash management account, may be the subject of declaration of notional estate.

Should provision be made for all or any of the plaintiffs?

42 Each of the three plaintiffs is an eligible person pursuant to s6(1)(a)(i) of the Act. Therefore, they are entitled to bring this application under s7 of the Act.

43 In making any provision out of the estate for the plaintiffs, the Court’s power is however constrained by s9(2) which states that an order shall not be made unless the Court is satisfied that:

“the provision (if any) made in favour of the eligible person by the deceased person, either during the person’s lifetime or out of the person’s estate … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper, maintenance, education and advancement in life of the eligible person.”

44 In Singer v Berghouse (1994) 181 CLR 201, the Court said as follows:

“It is clear that, under these provisions, the Court is required to carry out a two stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the Court to decide what provision ought to be made out of the deceased’s estate for the applicant. …”

45 Later, the Court said:

“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 inter-relationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Company (1938) AC 476. The determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper leave 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 up his or her bounty.”

46 The deceased made no provision in his will for any of the plaintiffs. The whole of the estate, should the defendant survive him by thirty days, was left to the defendant.

47 Each of the plaintiffs put on evidence which showed that they have modest assets although reasonable incomes. When compared with the position of the defendant who has substantial assets, a wise and just testator may have given a little more thought to the terms of his will than the deceased did. True it is, at the time of making his will he had modest assets, however he was aware of his chronic health problems and of the possibility that his mother, who had substantial assets, would in all probability predecease him. When taking into account therefore the possibility of receiving a benefit from his mother’s estate, the deceased would have assumed that he would receive either an interest in the Mosman property or a legacy from the proceeds of sale of that property. Should that situation arise, he would have sufficient assets and flexibility in his own estate to consider some provision for the plaintiffs.

48 Although there was some attack on the relationship each of the plaintiffs had with the deceased, in my view on balance the evidence does not point to any matters which would be regarded as ‘conduct disentitling’. In decisions such as Bonfield v Carrington, an unreported decision of Master Macready on 6 April 1995, and McKenzie v Baddeley, Young J, 26 October 1994, unreported, it has been commented that, for the Court to regard conduct of a disentitling nature, the circumstances should be such that the conduct was of such a nature as to induce the Court to hold that in the circumstances there was no moral obligation placed upon the deceased to make provision, or that the plaintiff’s flagitious lifestyle or adverse conduct towards the deceased was such that no provision should be made.

49 It is not suggested by the defendant that the plaintiffs’ conduct towards their father in any way was of a character or nature of the type indicated by the authorities. It is placed no higher than the plaintiffs to varying degrees did not see their father on a regular basis. The evidence is that both Stephen and Michael saw their father more regularly than did Nicholas. Nicholas’s evidence was that, for the period from late 2001 until the deceased’s death, he made no contact with his father and only spoke on one occasion to the defendant. No calls were made enquiring as to his father’s welfare. Michael appears to have seen his father more regularly than either of the other two plaintiffs. Stephen made offers to assist with matters designed to assist the defendant in ways that enabled her to cope with the deceased. Those offers were not made good. Stephen did however offer to assist the defendant with shopping and the like, and with spending some time with the deceased, however that was refused by the defendant. It would seem that part of the reason for her refusal because of her concern that the deceased’s special diet would not be followed. Stephen gave reasons why he did not see his father in the last nine months of his life. It was at that point that his marriage collapsed and his evidence was that he was occupied with trying to save his marriage. The marriage ultimately ended some three months after the deceased died.

50 None of those matters are matters which would cause a court to regard the plaintiffs as having severed the relationship with their father. The plaintiffs had a good relationship with their father for most of their lives. He supported and encouraged their interests, and generally appeared to enjoy their company. Even after he had the first stroke in 1987, they still saw each other regularly and enjoyed a similar sense of humour. There is nothing in the evidence to suggest that there had been any estrangement or that there was anything out of the ordinary which would suggest that because of the boys’ conduct, the relationship with the deceased had come to an end, and that there was no obligation on the deceased to make provision for the plaintiffs.

51 Consideration needs to be given to the relationship the deceased shared with the defendant. The evidence of the plaintiffs was that the care that she provided for their father was ongoing and ‘amazing’. Although the defendant and the deceased had been in a relationship since 1974, they did not live together on a regular basis until 1986, and then maintained separate residences. It was not until the deceased had the stroke in 1987 that they commenced to live together. This was a time where the defendant was taking on a partner who required a greater degree of caring than one usually associates with couples commencing cohabitation. From 1987 until the deceased’s death, he continued to live with the defendant. Indeed, they ultimately married. Notwithstanding the afflictions that the deceased had, the defendant willingly entered into marriage with him and continued to care for him. Not only did she care for him, but she encouraged him to develop other interests which would give some meaning and enjoyment to his life. She joined organisations which would be of assistance to him and which he had also joined. She encouraged him to take part in a wide variety of activities and to continue and to foster friendships. Without her, his life would probably have been quite bleak.

52 Comment was made of the renovations carried out to her home at Spicer Street. Her evidence was that, prior to the deceased moving in with her, the Spicer Street property was a one bedroom house. Moneys were expended from his superannuation to renovate the home so that it was a two bedroom home. The defendant however also expended her own funds in respect of medication and equipment required by, and for the care of, the deceased. There is no evidence that she sought reimbursement from his funds during the time that these items were acquired.

53 After the fall in 2000, the defendant was not only a wife but also a full time nurse. The care that she provided to the deceased enabled him to remain at home, thus avoiding the soulless life of nursing homes or institutions. At all times, the defendant tried to ensure that the deceased had quality of life. In 1994 she was made redundant, and thereafter became a full time companion for the deceased. However, by 1997 funds were running out and she was forced to resume employment, initially on a part time basis and then for two years on a full time basis. There is no suggestion that during her return to work, the quality of the time that she was giving to the deceased in caring for him was reduced. There must have been times when for her, there were simply not enough hours in the day.

54 Notwithstanding the quality of the relationship between the defendant and the deceased, in my view, the deceased should have made some provision for the plaintiffs. Therefore, inadequate provision was made for the plaintiffs.

55 Stage two of the Singer v Berghouse process requires consideration of what orders ought be made having regard to the circumstances in respect of the maintenance, education and advancement in life, for the plaintiffs. It is clear from the plaintiffs’ evidence that they have needs for which they turn now to their father’s estate. Both Stephen and Michael require some provision from the estate to enable them to purchase accommodation and to commence a business. Nicholas requires provision to enable him to complete a diploma, to cover his and his wife’s psychoanalysis expenses, to provide a sum for contingencies, and an amount which would enable him to put a deposit on accommodation for himself.

56 Whilst the defendant is asset rich, her cash position is at best line ball. It is her desire to retain the properties that she currently owns to enable her continue the lifestyle that she currently enjoys. Two of those properties were acquired by her prior to 1987.

57 However, the moneys were expended from the deceased’s superannuation fund in respect of the renovations that were carried out to the Spicer Street property. It would seem that the parties also used some of the superannuation funds, together with income earned by the defendant, to support them in the years between 1987 and 2002.

58 Submissions were made on behalf of the defendant that provision for the defendant should be paramount. In Re Estate of Cropley: Cropley v Cropley (2002) NSWSC 349, Barrett J referred to the following authorities: Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 27; King v Foster, NSWCA, 7 December 1985, unreported – it must also be borne in mind that, if the threshold issue is resolved in favour of intervention by the Court, that intervention should only be to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant.

59 In Cropley v Cropley (supra), at paragraph 56, Barrett J said as follows:

“When it comes to claims by adult children, it can be said at once that, if there is a competing claim by a widow and all the claims can’t be fully accommodated, then the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of the resources in the 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 which is ‘paramount’ and ‘of a high order’ is borne out by the judgment 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).”

60 The starting point for these authorities is a judgment by Powell JA in Luciano v Rosenblum (1985) 2 NSWLR 65. In that decision, his Honour said:

“It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the 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.”

61 However, recently the Court of Appeal has drawn attention to the words used by Powell JA in that case. In Bladwell v Davis (2004) NSWCA 170, Bryson JA said, at paragraph 19:

“In the application of the test in s7, and in 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 widow’s generally a 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.”

62 The defendant is currently unemployed, however she has between 1999 and 2001 worked in full time employment. She has also spent periods in part time employment since 1996. It is her intention to undertake the course for which she has been accepted at the University of Newcastle. There is no evidence before me to suggest that she would be undertaking that course as a full time student. Notwithstanding her age, and having regard to her skills, she has the potential to obtain some form of employment at least for the foreseeable future. If she is able to find employment, the income that she currently receives will be supplemented.

63 Each of the plaintiffs has expressed needs which, if provision were made for them, would denude the estate of its assets. Clearly, the estate cannot provide for the plaintiffs to the extent that they seek.

64 In my view, some modest provision ought be made for each of the plaintiffs. It cannot be suggested that, by making modest provision for them, the defendant’s lifestyle will be dramatically changed or that she will face great hardship. In my view, whilst there are special circumstances which warrant the defendant retaining a significantly larger proportion of the estate, there are also circumstances, having regard to the relationship the plaintiffs had with their father and their meagre assets, that some provision ought be made for them.

65 In relation to Stephen, some provision ought be made to enable him to have sufficient funds available to put down a deposit on accommodation which would then enable him to borrow the balance to the extent that his annual salary will permit. His evidence is that he has $55,000 in cash, and in my view provision should be made out of the deceased’s estate in the sum of $45,000.

66 In relation to Nicholas, once again modest provision should also be provided. In my view, provision should be made for Nicholas to enable him to meet the costs of completing his diploma and the purchase of small motor vehicle. The amount of provision that should be made for Nicholas out of the estate is a sum of $22,000.

67 In relation to Michael, he currently earns $100,000 annually, although his evidence is that that is not guaranteed. The nature of his industry makes him a poor risk for lending institutions, and it follows from his evidence that, regardless of whether or not Michael owns his own business or operates on a contract basis, whilst ever he is in that business, he will not be able to raise the funds from financial institutions to enable him to purchase accommodation. It would follow that if assistance were to be made for accommodation for Michael by way of a deposit, that may not necessarily assist him in obtaining accommodation. Michael has debts totalling approximately $22,000, therefore the provision that ought be made for Michael is a sum sufficient to discharge his debts. Therefore, the appropriate amount is $22,000.

68 I make the following orders:

(1) Declare that the property known as 31/36 Fairfax Road, Bellevue Hill be declared notional estate to the extent necessary to make the payments set out below and that the legacies be charged against the said property.

(2) From the estate of the late John Roebuck Leeze Rich, there be a legacy to John Stephen Rich in the sum of $45,000.

(3) From the estate of the late John Roebuck Leeze Rich, there be a legacy to Nicholas Charles Rich in the sum of $22,000.

(4) From the estate of the late John Roebuck Leeze Rich, there be a legacy to Michael John Rich in the sum of $22,000.

(5) The plaintiffs’ costs to be paid out of the estate on the party/party basis.

(6) The defendants’ costs to be paid out of the estate on the indemnity basis.
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