Robb v Hunter

[2003] NSWSC 946

CITATION:	Robb v Hunter & Anor [2003] NSWSC 946
HEARING DATE(S):	20/10/03, 21/10/03
JUDGMENT DATE:	22 October 2003
JURISDICTION:	5663/01
JUDGMENT OF:	Master Macready at 1
DECISION:	See paragraphs 49 and 50
CATCHWORDS:	Family Provision. Application by de facto partner who was left a life interest in one half of the matrimonial home. Consideration of competing claim of a son. Small estate insufficient to accommodate all claims.
PARTIES :	Loretta Margaret Robb v Robert Mervin Hunter and Pam Hunter
FILE NUMBER(S):	SC 5663/2001
COUNSEL:	Mr C.F. Hodgson for plaintiff Mrs K Thompson for defendant
SOLICITORS:	Enrights Solicitors, Maitland Oliver Campbell Lawyers, Cessnock

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Wednesday 22 October 2003

5663/01 Loretta Margaret Robb v Robert Mervin Hunter and Pam Hunter

JUDGMENT

1 Master: This is an application under the Family Provision Act 1982 in respect of the estate of the late John Hunter who died on 2 June 2000 aged 67 years. The plaintiff, who had been living with him as his de facto partner at the date of death and for many years before that date, and his son, the first defendant, survived the deceased. The deceased’s former wife, the mother of the first defendant, has been given notice of the proceedings and makes no claim on the estate.

The will of the deceased

2 The deceased made his last will on 7 September 1989 under which he left his tools of trade to his son. He left his half share of the property, which he and the plaintiff owned, to the defendants subject to the plaintiff having the right to reside therein until her death. The executor named in the will renounced probate and the plaintiff obtained a grant of letters of administration with the will annexed. It was for this reason that the defendants were joined as defendants.

The estate of the deceased

3 The estate of the deceased comprises the following:

(a) Half interest as tenant in common in lot 2 O’Conners Lane Nulkaba (near Cessnock) $250,000
(b) Tools and 1972 Valiant motor vehicle $439
(c) 2 guns $1,200
(d) Bank accounts $1,296

4 The plaintiff has paid the funeral account of $3,000. Administration costs are estimated at $2,995 and a half share of the balance of the loan from the Commonwealth bank is $3,842. The loan was at the date of death an amount of $33,414 and the plaintiff has made all repayments since the date of death. The estate has a potential liability for costs incurred of $1,058 in respect of the earlier proceedings brought by the defendant which have been ordered to be paid by the defendant.

5 More important the parties have incurred the costs of these proceedings. Those of the defendants are estimated at $38,600 and those of the plaintiff at $66,245.50

Family History

6 The deceased was born on 19 March 1933 and the plaintiff was born on 17 March 1943. She is thus 60 years of age. In 1950 the plaintiff’s family moved to Nulkaba. The plaintiff attended Nulkaba Primary School and then Cessnock High School, leaving at age sixteen without attaining her Leaving Certificate. In 1959 she commenced work at Cessnock District Hospital as a domestic and subsequently worked as a domestic at Allandale Hospital.

7 Pam Hunter (the wife of Robert Mervyn Hunter) was born on 7 April 1960 and Robert was born on 16 April 1961.

8 The plaintiff was married in 1966. She separated from her husband in 1969 and divorced in 1971. In approximately May 1972 the deceased and the plaintiff met when he was building a house for her parents on their property at Oroton Road, Nulkaba. The house was completed in October 1972 and they started going out together soon afterwards.

9 On 3 December 1975 the deceased was declared bankrupt. He divorced in 1976 having separated in about 1972. It was in approximately 1976 that the plaintiff commenced full time work at the Bonds Factory in Cessnock as a machinist having over the previous ten years worked for her parents as a general farm hand and having performed some short term work as a machinist at the Bradmill Factory at Rutherford.

10 In 1978 the plaintiff and the deceased commenced a de facto marriage relationship and raised the daughter (Jodie) of Ms Robb’s sister until she left their home to study at university in approximately 1987. There were no children of their relationship. For the first year or so the plaintiff did not stay overnight but she did thereafter and there seems to be no dispute that it was then a de facto relationship. In 1978 The deceased and the plaintiff entered into an agreement in relation to the purchase of Lot 2 O’Connors Road, Nulkaba (“the Nulkaba property”). They agreed to purchase it for $27,000 but were unable to obtain finance because the deceased was an undischarged bankrupt. Therefore they entered into an agreement with the vendors to pay instalments of $400 per month until September 1982 and then to pay the balance.

11 On 5 February 1979 the deceased commenced working at Aberdare East coal mine as a carpenter. In 1980 the plaintiff commenced work as a cook at the Brokenback Motel at Broke each Saturday and Sunday from 6.00am to 2.00pm in addition to her full time work at the Bonds Factory during the week.

12 On 4 December 1980 the deceased discharged from bankruptcy.

13 On 12 April 1981 Robert Mervyn Hunter and Pam Hunter married.

14 In approximately 1985 the plaintiff ceased work at the Brokenback Motel and commenced weekend work as a cleaner at Grice’s Bakery at Cessnock.

15 In June 1987 the deceased and the plaintiff took out a loan to finalise their purchase of the Nulkaba property, borrowing the sum of $22,000, which was the adjusted purchase price, and taking the property as tenants in common in equal shares.

16 In approximately 1989 the Aberdare East coal mine closed and the Deceased commenced work as a cleaner for the Department of Health at Cessnock Hospital and subsequently at Abernethy Retirement Village at Cessnock.

17 On 25 May 1989 Tracy Hunter (first child of Pam and Robert Hunter) was born.

18 On 7 September 1989 the deceased made his last will. In November 1991 the deceased had his first stroke and thereafter was unable to work full time resigning from the Abernethy Retirement Village and thereafter receiving a sickness pension that was supplemented by various part time work. He also received sickness insurance that was used to repay the balance of the mortgage over the Nulkaba property (at that time being approximately $16,500).

19 On 1 April 1993 Grace Hunter (second child of Pam and Robert Hunter) was born. On 29 April 1997 Louise Hunter (third child of Pam and Robert Hunter) was born.

20 In February 2000 the deceased and the plaintiff borrowed monies from the Commonwealth Bank secured against the Nulkaba property to purchase a Nissan utility for $34,000. Subsequently the plaintiff took out a personal loan with the Commonwealth Bank in order to build some stockyards at the Nulkaba property.

21 The deceased died on 2 June 2000. On 21 October 2001 the plaintiff fractured her right arm when she fell over while doing some cattle work at the Nulkaba property. She ceased work and has not returned to work subsequently. She commenced receiving fortnightly payments by way of accident benefits from International Underwriting Services under an insurance policy, such payments to be made for a period of two years after her accident. The payments will cease next month when the 2 years expires.

22 The summons was filed on 23 November 2001 and thus is within time. Probate was granted on 4 November 2002.

Plaintiff’s eligibility

23 There is no dispute that the plaintiff was the de facto wife of the deceased at the date of death and accordingly she 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 plaintiff’s situation.

24 The plaintiff is 60 years of age, single and has no dependants. She owns her half share of the Nulkaba property and a Nissan vehicle now worth $18,000. She also has various items of farm equipment worth about $4,000. She has a small bank balance and 2319 shares in Pacific Dunlop Ltd. She has a few cattle the value of which would not be great. She has a small superannuation policy, which she can access when she is 65. It has a present value of about $24,500.

25 She has recently had to resign from her work at Bonds due to her inability to obtain light duties with her employer. The amount she will receive from her main superannuation is $190,455.30. She still owes $8,136.05 on a personal loan and has a small balance due on the mortgage over the home of $7,685.17.

26 As I have pointed out the plaintiff will cease receiving her income of $476.50 per week next month but will still have her expenses of $354.50 per week. She has applied for jobs but has been unsuccessful. It is likely that she will have to apply for some assistance in order to cope.

27 The plaintiff has some heart problems and she has damaged her wrist. She cannot milk a cow but she can do other jobs around the farm. On 27 May, 2003 the plaintiff last saw Dr. Hammond who noted:

“I noted that it was now 18 months since the right wrist injury. She was performing most of her home activities, but was avoiding doing things such as cleaning with the right hand. The wrists movements on this occasion were unchanged since the previous measurement.

I told her that I did not think that she was going to be able to return to work at the same level that she had previously, although I felt that she was probably able to cope with lighter duties. I suggested part time employment.

I have made no arrangements to see her again. I have return[ed] care to Dr Kelvin Mychael, her local doctor.”

28 The plaintiff and the deceased had a good relationship. It is clear from their work history that the deceased and the plaintiff contributed to the purchase of the estate property. The deceased contributed more as a result of his payment out of the mortgage in 1991. The plaintiff also contributed to the farming activities over the years and it is plain from the history that I have recounted that she worked hard, including weekends, to acquire the property. They went without for many years to do this.

29 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The property needs some substantial renovation if it is to continue to be used as a residence. The cost has been estimated at about $60,000. The plaintiff is reluctant to spend money on a property in which she only has a half interest and she asks that she receive the deceased’s share of the property outright.

30 It is necessary to consider the situation of any others having a claim on the bounty of the deceased. In this case the relevant persons are the son and daughter-in-law of the deceased.

The situation of the defendants

31 The first defendant is 42 years of age and his wife the second defendant is 43 years of age. They have 3 dependant children aged between 6 and 14 years of age. They live in a house that they own at Weja Siding via Ungarie, which is about an hours drive from West Wyalong. The house was purchased recently for $22,995. They own a 1995 car worth $14,500 and have some furniture and personal tools worth $17,000.

32 Both defendants are unemployed and at present they are supported by social security of $530 per week which just covers their expenses of $438 per week. The first defendant was employed for many years by BHP but was made redundant in 1999. He shortly thereafter suffered a work injury and has not yet found further employment.

33 The first defendant lived with his mother after his parents’ separation but still kept in touch with his father. He gives evidence, which I accept, of helping his father with jobs on the property between 1978 and 1981. The relationship seems to have been a good one. It appears that the deceased made little contribution to his son’s education in contrast to that of his stepsister and Jodie. The reasons for this probably relate to the separation from his wife at a critical time in his sons schooling.

34 Although the defendants manage at the moment life is difficult and uncertain. The chance of the first defendant obtaining work in that area of the country would not be good.

Consideration of the application

35 The defendant referred to Marshal v Carruthers [2002] NSWCA 47 in which Hodgson J had the following to say in respect to claims by de facto partners:-

“The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
64 The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69
“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.”
65 I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

36 In the present case we are dealing with a relationship which commenced in 1972 and developed into a de facto relationship by 1981. The property no doubt was purchased with a view to the commencement of that relationship. There have been substantial contributions to that property by the plaintiff. It must be remembered that the deceased had nothing at the time the property was agreed to be purchased.

37 The plaintiff and the deceased also took on parenting responsibilities in respect of the child Jodie for some 10 years. Clearly their relationship was a committed one for the benefit of both of them. In these circumstances there are a number of factors, which suggest that this situation is more akin to a marriage rather than a de facto relationship in terms of what appropriate provision should be made by a testator. That said the present case has to be considered on its own merits without adopting any rules of thumb. The estate is small and there are insufficient assets to provide anything else apart from some additional housing for the plaintiff.

38 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.

39 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 (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.”

40 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 Worladge 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.'

41 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.

42 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.'

43 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky , 5 October 1998, unreported, the Court 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.'

44 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.

45 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.'

46 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. “

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

48 The plaintiff will have the funds from her superannuation to carry out the repairs to the property so that she can continue to live there. That is her desire and given her interest in farming it is appropriate. She is very attached to the property and has no desire to live in town. She will have little in the way of superannuation and will need the security of the property to provide for future changes to her needs for accommodation.

49 I appreciate the financial position of the defendants and I have given careful consideration to whether I could , under s 10 of the Act give a small legacy to the deceased’s son. The problem is the size of the estate. The only funds that are available are the plaintiff’s superannuation monies of $190,455.30. She would have no ability to borrow on the property at this stage. From this the plaintiff will have to pay debts of $16,821. Having regard to the orders I propose to make in respect of costs a further $104,845 will have to be found by the plaintiff. This leaves her with $68,334, which is only just enough to make her house liveable. It seems to me that there is not enough in the estate to accommodate all the claimants. In my view the plaintiff should receive the deceased’s share of the property outright on the basis that she takes over the liabilities for the outstanding loans. The first defendant is still to receive the specific bequest of personalty given under the will to the extent that such items are available.

50 So far as costs are concerned the defendants were necessary parties and were entitled to uphold the will as the plaintiff, as administrator of the estate, could not do this. Their costs should be met out of the estate other than the personalty passing to the first defendant. I will make no order for the plaintiff’s costs to the intent that she shall bear her own costs.

51 The parties should bring in short minutes.

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Last Modified: 10/28/2003