Russell v Rindfleish

[2002] NSWSC 910

CITATION:	Russell v Rindfleish [2002] NSWSC 910
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3348/00
HEARING DATE(S):	23,24,25 July 2002 16,17 September 2002
JUDGMENT DATE:	3 October 2002
PARTIES :	Nida Russell v Thomas John Rindfleish (Estate of Terrance Alfred Russell)
JUDGMENT OF:	Acting Justice Macready at 1

COUNSEL :	Mr F. Santisi for plaintiff Miss K. Ottesen for defendant
SOLICITORS:	Hunter Lawyers for plaintiff R.L. Whyburn & Associates for defendant
CATCHWORDS:	Trusts. Claims for express trust and constructive trust. On the facts not proved. Equity. Estoppel. Former wife does not make a claim for property settlement as a result of representations by husband that he would provide for her in his will. Loss of opportunity to make a claim. Family Provision. Application by former wife. Legacy allowed.
DECISION:	Paragraph 76

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Acting Justice Macready

Thursday 3 October 2002

3348/00 Nida Russell v Thomas John Rindfleish (Estate of Terrance Alfred Russell)

JUDGMENT

1 His Honour: These proceedings concern the estate of the late Terrance Alfred Russell who died on the 30th of January 1999 aged 62 years. The deceased was survived by the plaintiff his second wife, his three children by his first marriage and his two children from his marriage to the plaintiff. The plaintiff's first wife is still alive and she has been given notice of these proceedings. She makes no claim.

2 The plaintiff makes a claim that the deceased’s property was held in part either by way of express or constructive trust for the plaintiff or that the deceased was estopped from denying that the house would be held in part for her. As an alternative the plaintiff makes a claim under the Family Provision Act 1982. The whole of the proceedings were referred to a Master for hearing. At the commencement of the hearing I was then a Master of the Court.

The Will of the Deceased

3 The deceased made his last will on 19 July 1990. Under that will he appointed the defendant and his daughter Kim as executors. The deceased gave a legacy of $20,000 to each of his children by his first marriage these being Kim Elisabeth Sullivan, Gabriel Mary Hansford and Michael Patrick Russell. He left the residue of his estate for such of his children by his second marriage, namely Melissa Theresa Russell and Mark Terrance Russell as shall survive him and attain the aged 21 years. In default of them both surviving, the estate went to his children by his first marriage.

The Estate of the Deceased

4 The only substantial asset that the deceased had at the date of his death was his house at 3 Hordern Avenue, Petersham. That is now valued at between $430,000 and $470,000. There was an insurance policy of a little over $4000 that has been got in and used for costs in the estate. The plaintiff's costs are estimated at $46,000 for a three-day hearing and those of the defendant at $36,777 for a three-day hearing. The matter was initially heard for three days, was adjourned, heard for a further two days and the costs have increased beyond those estimates. The additional costs incurred by the Defendant amount to $8,670 and those of the plaintiff $10,400. These costs total $101847.

The Family History

5 The deceased was born on 8 February 1936. The plaintiff was born in the Philippines on 9 June 1959. Both the plaintiff and the deceased had prior marriages. The deceased’s first daughter of his first marriage was Kim O'Neill who was born on 24 January 1960. His second daughter Gabriel (known as Gaye) Mary Hansford was born on 1 October 1961. The deceased’s son of his first marriage Michael Patrick Russell was born on 24 July 1964.

6 The plaintiff and the deceased were married in a ceremony in the Philippines on 27 September 1982. In November of that year they moved to Sydney and lived at the property 3 Hordern Avenue, Petersham. At that time the property was owned by the deceased’s half brother Bede Fannel who also lived at the property with the deceased's father. The deceased and the plaintiff occupied part of the property. In 1984 Bede Fannel moved out of the property but rent was still paid by the deceased.

7 The plaintiff became an Australian citizen in June 1984 and the first child of the plaintiff and the deceased, Melissa, was born on 16 December 1984. In 1985 the deceased’s father died. In 1986 the deceased’s son Michael lived in the property for a few months and there are some allegations about a sexual relationship between the plaintiff and Michael at this time. I will deal with these matters later. On 21 January 1987 the deceased and the plaintiff’s second child Mark Terence was born.

8 In 1990 according to the plaintiff's affidavit evidence she and the deceased separated. The plaintiff moved into a rented flat taking with her the children Melissa and Mark. On 19 July 1990 the deceased’s will was made the terms of which I have referred to above. In 1991 Melissa and Mark returned to live with the deceased at 3 Hordern Avenue, Petersham. In 1992 the deceased was diagnosed with prostrate cancer and this continued until his ultimate death as a result of that illness.

9 In April 1993 having regard to the deceased’s medical condition the State Rail Authority authorised his retirement. The deceased who was then aged 57 years had been a guard on the railways for many years. He received a payout in respect of his superannuation amounting to $194,721 of which $150,072.08 relates to concessional and pre 1983 accumulations. In May 1993 the deceased granted a general power of attorney in favour of his daughter Kim. In September 1993 the deceased purchased the property at 3 Hordern Avenue, Petersham for $85,000.

10 In 1994 the plaintiff began a relationship with Martin O'Connell who later after the death of the deceased became her de facto partner. In June 1996 the plaintiff made an application for divorce and there were a number of discussions at this time alleged by the plaintiff. The discussions concerned what the plaintiff alleges were promises by the deceased to leave half the property to her in his will and the other half to their two children. The plaintiff alleges that she relied upon this and did not make a property application.

11 The deceased’s daughter Gaye had moved into the property in 1993 and assisted the deceased in looking after the children. Her boyfriend also occasionally stayed at the premises. Gaye moved out of the property in 1998. Throughout this period the plaintiff suggested in her evidence that she continued to visit the property and assist at the property with cleaning and looking after the children who of course lived at the property for the whole of this time.

12 Towards the end of 1998 the deceased became quite ill and he died on 30 January 1999. For six months the house was occupied by the deceased’s children with the plaintiff coming from time to time to help. During 1999 the plaintiff and her partner Martin O'Connell moved into the property and looked after the children. Probate was granted about this time and the summons in this matter was filed within time in July 2000. The daughter Melissa moved out of the property in November 2000 as there was a falling out between her and her mother.

The Trust and Estoppel claims

13 The plaintiff made a claim in respect of an express trust and a constructive trust. These claims were expressed in various ways in the summons and were articulated somewhat differently in submissions. At the heart of all of these claims are statements attributed to the deceased by the plaintiff. In order to assess the claims it is first necessary to determine what was said by the deceased to the plaintiff at various times after their separation in 1990.

14 It is apparent that between 1990 and 1993 there were discussions between the plaintiff and the deceased in which they both agreed not to get solicitors involved and that they would help each other with the children. These conversations are not of any particular moment and are obviously in the context of looking after the children. It will be recalled that for the first year the children were with the plaintiff and then they were returned to the deceased at Hordern Avenue.

15 The property was acquired by the deceased in 1993. The plaintiff in her affidavit in chief at paragraphs 23 and 26 said that the deceased, in the context of a discussion about not wanting to get solicitors involved said on a number of occasions: --

“I want 50 percent of the house to our children Melissa and Mark and 50 percent of the property will go to you”

16 The plaintiff made it plain that she understood that when the deceased told her that 50% was to go to her she believed that he would leave half of the house to her in his will. Clearly the deceased was not making a statement affecting his then beneficial ownership in the house.

17 The plaintiff gave evidence in her affidavit in chief that when she applied for divorce in 1996 she told the deceased that fact and he said words to the effect of: --

“If that's what makes you happy, that's what you should do. I will put you in the will, there is no need to get solicitors involved they’re very expensive. I will look after you"

18 In her oral evidence in chief she gave a slightly different version of this conversation. She said that after she filed for divorce the deceased asked her what she would like. The plaintiff said that she wanted 50% of the house. The conversation continued, according to the plaintiff, with the deceased saying: --

“All right. We’ll sell the house then."

19 The plaintiff then replied: --

“No, you don't do that just write down on your will that 50% of the house"

20 According to the plaintiff, the deceased replied: --

“All right. I will write that on my will that your 50% is in the will. My 50% will go into Melissa and Mark"

21 The plaintiff also gave evidence that in 1998 when the deceased was dying she asked whether he had made the will and according to her he said: --

“Yes I put you in the will. The Will is at the solicitors office."

22 In her oral evidence she also says that when he was ill she asked a question to this effect several times and received the same response.

23 There was evidence by the plaintiff in her affidavit and in her oral evidence that she relied upon these conversations not to make an application for property settlement. Such a property settlement could be made within one year after the divorce in 1996 and thereafter with the leave of the court. Once the deceased died her right to make a claim for a property settlement was lost as such a claim cannot be made after the death of one of the parties. See In the Marriage of Sims (1981) 7 Fam LR 667; In the Marriage of Rampling (1987) 12 Fam LR 33; In the Marriage of Slater (1985) 10 Fam LR 381; In the Marriage of Phillips (1985) 10 Fam LR 310.

24 There were a number of witnesses who gave evidence of conversations that they had had with the deceased after separation in which he told them how the bulk of his estate would go to his children Melissa and Mark. The only corroboration of the plaintiff’s version is evidence given by her de facto partner that on one occasion between 1998 and 1999 the plaintiff repeated the conversation that she and the deceased had. In his oral evidence he also stated that in 1996 the plaintiff told him of the agreement she reached with the deceased that he would leave her 50% of the property in his will. Mr O'Connell, the de facto husband, gave evidence before me in a satisfactory manner. Although his interests are with the plaintiff it does provide some corroboration of her story. The other factual matters which are likely to corroborate what was said are the circumstances which existed after the deceased retired, received his superannuation and purchased the house.

25 The deceased was in a fortunate situation in one sense in that after separation as a result of his retirement he came into property. He was at risk of a claim by the plaintiff for a property settlement and if he could forestall it by making promises to her that would obviously be in his interests and the interests of the children. The deceased was concerned that the children would not be provided for by the plaintiff and it would only be if he could leave them money that they would have a start in life. There was thus every incentive for the deceased, if he wished to follow this course, to make the promises which are suggested by the plaintiff. The other factor of significance is that at all times when the promises were made the children were living with the deceased. The plaintiff for her own reasons did not wish to disturb this arrangement and therefore it is very likely that she would have been happy for the deceased to continue to look after the children in the hope that she would receive something on the death of the deceased. She knew the deceased was suffering from cancer and likely to die.

26 In these circumstances it seems to me that it is likely, particularly in 1996, that the deceased did make a promise to the plaintiff that he would leave 50 percent of his property to her in his will and 50 percent to the two children. The differences between the versions given in the plaintiff’s affidavit and oral evidence are not significant. The likelihood is that it happened in the way indicated in the plaintiff’s oral evidence. The 1996 representations are important because in respect of these the plaintiff says that she relied upon them and did not make an application for a property settlement.

27 Insofar as reliance is concerned there is evidence by the plaintiff that she relied on the conversations. In cross-examination she indicated that at the time she made the application for the divorce she did not seek a property settlement as she thought it would hurt her children. That does not detract from the reliance which she had on the conversations. She conceded that she sought Legal Aid in connection with the divorce and did not get much help. Having regard to the situation of the plaintiff, the deceased and the fact that he was caring for the children, it is likely that the plaintiff probably did rely on his promises and as a result did not take any further action.

The Express Trust Claim

28 This was said to arise out of the conversations to which I have referred. Plainly on their face they do not address the ownership of the property. They only deal with the representations as to what steps the deceased would take with his will. In these circumstances there is no room for an express trust.

The Constructive Trust Claim

29 There was a fundamental problem with the claim in the way it was advanced relying upon Baumgartner v Baumgartner (1987) 164 CLR 137 in that there was no joint endeavour in respect of the house. The deceased acquired the house after separation. The essence of the arrangements between the deceased and the plaintiff after separation were directed towards maintaining the children and looking after the children's education. There is evidence of some payment of rates by the plaintiff after separation. There is no evidence, however, of any joint endeavour nor were there contributions by the plaintiff to the purchase of the house. Clearly it was a decision made by the deceased himself. He used part of his superannuation payment to purchase the house. After the defendant’s initial submissions drew attention to the deficiencies of the claim as originally framed the plaintiff's submissions were to the effect that the arrangements in 1996 should lead to the finding of a constructive trust. At that stage there was no joint endeavour between the parties other than arrangements for the maintenance of the children. None of the discussions in any way dealt with the deceased's then present ownership of the property in question. They did not purport in any way to disturb his ownership and were simply directed to promises to leave the property by will in the manner to which I referred. Such arrangements show that the plaintiff in fact contributed to school fees for the children between 1995 and 1998 in the sum of $3,335. She contributed to the telephone an amount of $543.55, water rates between 1996 and 1999 of $754.20 and council rates amounting to $182.58.

30 In the circumstances these contributions were merely part of the arrangements for the support of the children. As he had the children living with him the deceased was maintaining them himself apart from the very odd occasion when the plaintiff might purchase groceries and clothes for the children. There is absolutely no evidence to suggest that any of these payments were in anyway referable to some arrangement concerning ownership of the property. In these circumstances I do not see how there can be any constructive trust.

The Plaintiff's Estoppel Claim

31 The plaintiff articulated a claim based upon Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 in her original submissions. A useful statement of the principles in that case is set out by Priestley J in Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472 as modified in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610. His Honour distilled the following propositions from the reasoning in Waltons’ case: --

“(1) Common law and equitable estoppel are separate categories, although they have many ideas in common.
(2) Common law estoppel operates upon a representation of existing fact, and when certain conditions are fulfilled, establishes a state of affairs by reference to which the legal relation between the parties is to be decided. This estoppel does not itself create a right against the party estoppel. The right flows from the court's decision on the state of affairs established by the estoppel.
(3) Equitable estoppel operates upon representations or promises as to future conduct, including promises about legal relations. When certain conditions are fulfilled, this kind of estoppel is itself an equity, a source of legal obligation.
(4) Cases described as estoppel by encouragement, estoppel by acquiescence, proprietary estoppel and promissory estoppel are all species of equitable estoppel.
(5) For equitable estoppel to operate in circumstances such as those of the present case there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.
(6) Equitable estoppel may lead to the plaintiff acquiring an estate or interest in land; that is, in the common metaphor, it ay be a sword.
(7) The remedy granted to satisfy the equity (which either is the estoppel or created by it) will be what is necessary to prevent detriment resulting from the unconscionable conduct.”

32 The departure by the deceased when he made his will or failed to make another will no doubt was unconscionable. The plaintiff lost the right to make an application for property settlement once the deceased had died.

33 Under proposition 7 the Court states that the remedy granted to satisfy the equity will be what is necessary to prevent detriment resulting from the unconscionable conduct. It seems to me that the detriment resulting from the unconscionable conduct is the loss of an opportunity to make a property application. It is not the loss of the half share the deceased promised to leave the plaintiff in his will. The amount of the detriment suffered by the plaintiff will depend upon whether the plaintiff would have a successful property application if she had made one between 1996 and the date of death of the deceased and the amount that she is likely to have obtained. The difficulties which would have faced the plaintiff in making a property application are numerous and they include: --

1. That all contributions to the purchase made by the deceased were from his superannuation money and not from funds provided by the plaintiff.

2. Any contribution in respect of the deceased’s superannuation would be small because he was employed for 36 years and any contributions by the plaintiff during the marriage was only for seven years.

3. The deceased was looking after the children in the property. The sale of the property to give some assistance to the plaintiff would see that accommodation unavailable to the children.

4. The deceased used part of his superannuation funds after 1993 to support the children.

5. Cohabitation was only for a period of eight years.

34 It is difficult to form a view about what settlement the plaintiff might have achieved if she had brought proceedings for a property settlement. One of the reasons that makes this difficult for me to assess is that I do not have evidence of the deceased's financial situation in 1996. At the date of death it is clear that he had no funds left from his superannuation payout and that he was receiving a pension which he had received for several years. When he purchased the house out of his superannuation funds he would have had a sum of $80,000 left over after allowing for the costs of purchase. The purchase was in 1993 and it is probable that by 1996 he still had some cash left over.

35 Given the fact that the deceased had the care of the children in 1996 and that they were then aged nine and twelve, it would be unlikely that the court would disturb the deceased’s occupation of his home. It would seem to me that the most likely result would have been an award of a modest sum of money which the deceased could afford to pay the plaintiff in order to recompense her for her contributions during the period of the marriage. Certainly by working during the period of the marriage she contributed to the household. The house acquired by the deceased was from his superannuation which was accrued in part by him during the period of the marriage. The post 1983 part was in the order of some $44,000.

36 Evidence of the precise contributions made by the plaintiff would probably be more likely to be available in 1996 than now. Indeed the parties in the application before me did not engage in any exercise of attempting to quantify the assets of the parties in 1996. The value of the house would then be likely to be more than $85,000 which was its purchase price in 1993. Despite the difficulties with the evidence and assessing the matter as best I can without the benefit of any detailed submissions it would seem to me that the most the plaintiff could hope to achieve would be a cash settlement which would probably reflect something close to the spare funds that the deceased had available at the time of settlement. I would expect this to be somewhere in the order of $30,000.

37 The detriment suffered by the plaintiff in 1996 is thus in the order of $30,000. It now six years later and she has not had the benefit of those funds for this period.

The Plaintiff’s Family Provision Act Application

38 It is necessary to move to the Family Provision Act application which is brought by the plaintiff to see whether her application under the Act might produce a more favourable result.

39 As the plaintiff is a former wife she is an eligible person and can make a claim. It is however necessary for her to demonstrate factors warranting the making of the application pursuant to section 9 (1) of the Act.

40 The question of factors warranting in respect of former spouses has been dealt with in a number of cases. In Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639, a number of the judges dealt with this matter. Kirby P had the following to say:

"Fifthly, the respondent, picking up one of the themes of Mr Landa's comments, urged that s 9(1) of the Act was to be read in the light of the policy of the law to promote the finality of settlements of property disputes by orders made in the Family Court. Where such orders had been made, an order under the Act in the case of a former spouse should be exceptional. Only if this approach were adopted would the policy of the Family Law Act (Cth) be fully achieved. That policy is that parties whose marriage has been dissolved and in respect of whom orders have been made disposing of their matrimonial property, could go their separate ways . Save for the rare and exceptional cases provided under the Family Law Act (Cth), such parties should henceforth face no financial obligation from one to the other. This public policy was referred to by Young J in O'Shaughnessy (at 149). It was also stressed by his Honour in the present case. There is no doubt that in most cases, the achievement of a final property settlement in the Family Court would be seen by the parties, in current social circumstances, as terminating any moral claim of a former spouse to provision in the will of the other. Confronted by the news that he or she had been excluded from the will of the former spouse, the response would, in the overwhelming majority of cases, be: 'Our marriage was dissolved. We settled our financial affairs. We can each start a new life. That was the whole point of the Family Court proceedings.' To this extent, I agree with what Young J has written in O'Shaughnessy and in this case."

41 Mahoney JA said the following:

"That which the court 'shall first determine' is whether 'there are factors which warrant the making of the application'. That phrase may be contrasted with the references otherwise made to the determination of, for example, 'what provision (if any) ought to be made in favour of an eligible person...'. On the face of s 9(1) there is a distinction between 'factors which warrant the making of the application' and factors which warrant the making of an order.

That distinction accords with the principle which, in my opinion, is inherent in the legislation, viz, that, special cases apart, an order is to be made only if the deceased has made default in the performance of a duty which he owed to the particular plaintiff. I do not think that this case requires a final analysis of the basis of applications under the Act: It will be sufficient to refer to this matter in general terms. But the Act authorises the court to 'order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person' (s 7). That does not mean that, if the plaintiff establishes a financial need within the section and if on taking into account the considerations referred to in s 9(2) (the discretionary considerations) there be nothing to the contrary, an order must be made. The statute assumes that the deceased, in what he has done during his life and by his will, has failed to discharge a duty which he owed to the plaintiff (the moral duty). Thus, a plaintiff may be a former spouse who, on dissolution of the marriage, received what on any view she was entitled to have and there may have been no further relationship between them so that none of the factors in s 9(3)(a) to s 9(3)(c), are of relevance. But, at the deceased's death, she may have a financial need. In such circumstances, the fact that the plaintiff has established that she was a former spouse and has a financial need would not, as such, entitle her to an order. It would be necessary for her to establish that, in some way or because of circumstances within s 9(3)(d), the deceased had a duty to her which involved that he should have provided for her financial need. This will be so a fortiori where the basis for the eligibility of the plaintiff is alleged to be within par (d) of the definition of 'eligible person'." Importantly, it can be seen that the question of need is a separate matter and factors warranting are something different from that.

42 In another case, Churton v Christian (1988) 13 NSWLR 241, his Honour Priestley JA said the following, in respect of this type of application:

"Mrs Christian is a member of a class in respect of whom warranting factors may often be more difficult to find. It is common experience that divorce sometimes brings to an end all links between previously married people. In such cases, warranting factors might well be expected usually to be absent, although this need not be universally so. On the other hand, divorced persons may remain on close terms, sometimes little different from those on which they lived when married. In every case it is necessary to examine the actual relationship between the two people concerned, as far as possible without preconceptions based only on the fact of divorce."

43 In his comments he illustrated a situation which sometimes applies after there has been a divorce and a property settlement, namely, that the parties still continue to have a close association.

44 There has also been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than what was referred to in the other decisions of the Court of Appeal to which I have referred. Recently in Penfold v Perpetual Trustee [2002] NSWSC 648 Windeyer J had to consider the conflict. He preferred the approach in Re Fulop Deceased (1982) 8 NSWLR 679 and he noted that that approach had been accepted by Bryson J in Mulcahy v Weldon [2001] NSWSC 474 an appeal from which decision was dismissed by the Court of Appeal recently: see [2002] NSWCA 206. I will consider the matter on both bases given that there may be some flux in the state of the law in this regard.

45 As the plaintiff did not have a property settlement it would seem to me that on the traditional basis there are factors warranting the making of the application. I also will consider whether the plaintiff is likely to succeed in respect of the application. The defendant suggested that factors warranting should not be found because of factual circumstances which went to whether the plaintiff was likely to succeed in respect of the application.

46 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."

47 I turn to consider the plaintiff's situation. She is 43 years of age and living in a de facto relationship with Martin O’Connell. She has care of the son Mark who is presently 15 years of age. The plaintiff works as a supervisor with the Marriot Hotel earning a salary of $30,000 per annum gross. She also receives $222 per fortnight child allowance. She and Martin have lived in the estate property since 1999 and, although they have paid the rates and taxes, they have paid no rent. The plaintiff has little by way of assets. She has furniture and $1000 in the bank. She has credit card liabilities of $39,200 and owes her partner Martin $20,000.

48 She met her partner Martin in 1994 and they commenced their de facto relationship in 1999. Having regard to the length of the relationship it is probably appropriate to note his financial situation. He is an IT administrator and earns a salary of $48,000 per annum. He has superannuation and 804 NRMA shares. He has money on deposit of approximately $20,000 and a car worth $12,250.

49 It is necessary to consider the relationship between the plaintiff and the deceased. The plaintiff's evidence was punctuated with claims that the deceased drank a lot and spent his time at the local RSL playing the poker machines. It was these matters and also the fact that the deceased had been seeing a former girlfriend most of the period of the marriage that led to the break down in the marriage according to the plaintiff's evidence. There is also an allegation that the plaintiff had an affair with the deceased’s son Michael in 1986.

50 Michael Russell gave evidence of having had an affair with the plaintiff while he was living at home for a few months in 1986. He says that he informed his father of this fact during an argument with him when the plaintiff was present. He says that she stormed out of the room. The plaintiff denied this allegation. There was evidence given by a witness, Marilou Wyndham, who said that she had some discussions with the plaintiff in which she indicated that she loved Michael Russell and that she wanted to go to Holland with him. There is no doubt that the plaintiff did in fact go to Holland and that Michael did not accompany her. She went with the deceased’s permission to visit a friend in that country. I did not find Miss Wyndham's evidence very convincing and there was tendered documentary material showing that in recent years she had been suffering from depression and times was suffering from paranoia. In the circumstances I do not regard her evidence as corroboration of Michael's evidence.

51 The charge which Michael makes is a serious one and I would need to be satisfied appropriately that what he describes did occur. One would have thought that there would be other evidence available of perhaps statements made by the deceased to others concerning this affair and which might support Michael’s statements. In the circumstances I am not satisfied of the truth of the allegations.

52 There is evidence from a witness that referred to arguments after separation which he witnessed between the plaintiff and the deceased where foul language was commonly used. That evidence should be accepted. It seems to me, on a consideration of all the evidence, that the marriage for the period up until separation could not be described as a happy one.

53 There is no evidence given by the plaintiff of any contributions she made to the purchase of the house that occurred after separation. As I have indicated the house was purchased out of the deceased’s superannuation funds and the amount of his superannuation that was attributed to the period post 1983 was about $44,000. The period of accumulation during the marriage while the parties were together would probably have been in the order of $35,000 to $40,000. She commenced working not long after the birth of the first child and continued to do so for most of the period of the marriage.

54 It is necessary to look at what contributions were made to the household prior to the separation in 1990. According to the plaintiff she was the one who did all the washing, cooking and cleaning at home and I accept her evidence in this regard. When she first started working in 1984 she was earning $390 net per fortnight. The plaintiff said that the deceased throughout the marriage would give her about $150 week to meet the living expenses and a little more during the period when she was not working. She says that the balance of the weekly expenses were met out of her wages each week. As a result she was unable to save large amounts of money during the marriage. There is no reason to doubt the plaintiff’s claim of contributing her funds to the support of the family during the period in which the parties were living together.

55 A substantial amount of the evidence in the present case was taken up with analysing what were the contributions made by the plaintiff after separation. Leaving aside contributions after the date of death that clearly should have been made by the plaintiff one has to look at the contributions made both by the deceased and the plaintiff for the period from separation up to the date of death. These were essentially contributions by both the deceased and the plaintiff that were related to the children's clothing and education.

56 Apart from one year the deceased had the custody of the children and they lived with him in his house. Thus he had the immediate responsibility of providing for them. It is clear that the plaintiff contributed to the children's education and paid some household expenses. I have earlier set out these amounts which totalled $4,815.33. There is also other assistance spoken of by plaintiff. This mainly consisted of providing some food and clothing for the children. It seems likely that in the last months of 1998 after his daughter Gaye left the property that the assistance given by the plaintiff to the children increased substantially.

57 It also necessary to look at the situation of others who have claims upon the bounty of the deceased. In the circumstances of this case these are the three children by the deceased’s first marriage and the two children from his marriage with the plaintiff.

Kim O’Neill

58 Kim is 42 years of age, married and has two children aged four and seven. She is not employed as she is looking after her children but hopes to be employed shortly. She and her husband are living in Rockhampton, Queensland. Her husband is a storeman earning $460 a week. The family also receives a Family Supplement of $205 per week making a total income of $665. This is a minimal income for the family and they are unable to save as they live in rented premises. Their only asset is a car worth $20,000 dollars, which is subject to finance. Clearly the $20,000 legacy left to them under the will would be a great help to them.

59 Kim has been living in Queensland since 1995 and because of her poor financial situation was not able to visit the deceased from that time until his death. Before moving to Queenslandthe evidence is that she would visit and, even after she moved Queensland, she would talk to the deceased by phone. There is nothing to suggest that the relationship was other than as a dutiful daughter. Certainly she was trusted by the deceased as he made her and her sister Gaye his Power of Attorneys.

Gaye Hansford.

60 Gaye is 40 years of age, single and has no children. She lives with her de facto partner in a house which he owns. It was purchased for $380,000 in 1989 and is subject to a mortgage. She is a clerk earning $38,000 gross and her only asset seems to be a half share a car worth $5000. She has debts of $5194. She shares household expenses and the mortgage on the property. She suffers from some heath problems and is being treated for pernicious anaemia.

61 She lived with the deceased from 1991 to 1998 and no doubt assisted him looking after the children in those years. She gave evidence of contributions that she had made to the household in that period. These consisted of payment of various accounts, rates and the like which amounted to $6960.

Michael Russell

62 Michael is 37 years of age and is presently living with his de facto partner Tracy. From a previous relationship he has two children but they do not live with him. He rents premises and has a car worth about $1,100. He is a sub manager at the Rockdale RSL Club and earns $570 per week. His partner Tracy is a sales assistant earning $344 net. Their expenses include child support which Michael pays the mother of his children.

63 There is no evidence dealing with the relationship between the deceased and Michael other than that I have referred to above. He has made no contribution to the estate of the deceased.

Mark Russell

64 Mark is aged 15 years and is attending Christian Brothers School. He lives with the plaintiff who supplies his needs. At this stage he has no future plans as he is too young to decide such matters. He presumably has no assets.

65 Mark, it will be remembered, lived with the deceased from 1991 to 1999 and it is clear from the will and statements made by the deceased that he wished to benefit his son, Mark.

Melissa Russell

66 Melissa is 17 years of age and is presently in Year 12 studying for the Higher School Certificate. She attends Leichhardt High School and after leaving school she hopes to do a degree in Sports Science at the Australian College of Physical Education. Apparently that will cost some $4,000 per annum. She lives away from her mother and receives an allowance of $281 per fortnight and has a small amount of income from part-time work. She lives with a friend and she has no assets.

The Plaintiff's Claim

67 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. In this respect she has to pay off her debts that I have referred to above. She also expresses the need to have a unit and has made enquires about her borrowing powers in that respect. According to her evidence the bank will lend on her salary approximately $240,000 provided she puts up a deposit of 25%.

68 Working on a conservative basis the present estate available for distribution would appear to be the following: --

Value of house, $430,000
Less costs $101,847
Balance $328,153
Less costs of sale $10,000 $318,153
Less legacies of $60,000 $258,153

69 It is this sum which would be shared under the will between the two children of the deceased and the plaintiff.

70 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Golosky v Golosky (unreported, 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

71 In the present case the situation of the plaintiff is far removed from the Court’s expression of what is appropriate for the widow to which it was referring. The plaintiff and the deceased were only together for a period of eight years and on the case put by the plaintiff it was a very unhappy marriage. There were however contributions during a period of the marriage by the plaintiff from her income and these continued after separation up until the death of the deceased.

72 The plaintiff articulated a case which suggested that she should have some substantial sum such as a half share of the estate to enable her purchase a home. I would think, however, that this case is not one where the Court should look at giving the plaintiff sufficient funds to purchase a home. This is because of the short period the parties were together and the other matters which are dealt with above. The plaintiff has obviously a need to relieve herself of the debts which she presently has accumulated.

73 How much she should have requires a consideration of the other claims upon the bounty of the deceased. The legacies to the children of the former marriage are quite small and in each case the legatee is deserving of some benefit from the deceased in at least that amount. I have earlier described the situation of the children, Melissa and Mark. What they need now is to have funds available to advance their further education. To the extent that it is possible to do so these needs have been identified by them. Those needs are somewhat less than the amount that they will presently receive as their half share of residue and thus there is room for the plaintiff to receive a legacy to assist her.

74 The plaintiff has enjoyed rent-free accommodation in the estate property since July 1999 and the evidence here is that it had a rental value in 2002 of $350 per week. In submissions the defendant suggested that adopting a conservative rate of $300 per week there was a benefit that she had received of about $46,800. After allowing for payments made for rates, etc, after the date of death, clearly she has received a benefit of approximately $40,000.

75 In these circumstances it seems to me that an appropriate amount to provide for the plaintiff, after taking into account the benefits she has received, would be a legacy of $75,000. This amount is greater than the amount which I have found the Court might be minded to award in respect of the claim based on estoppel. In arriving at this amount I have not taken into account the asset which that claim represents. If I did, I would need to reduce the legacy by the same amount. In these circumstances it is only necessary to give judgment on the Family Provision Act claim.

76 The orders that I make are:-

1. That the plaintiff receive a legacy out of the estate of the deceased in the sum of $75,000.
2. Interest is to run at the rate prescribed under the Wills, Probate and Administration Act from three months after this judgment.
3. The plaintiff is to vacate the property 3 Hordern Avenue, Petersham upon the payment of the legacy or completion of the sale whichever is the earlier.
4. Reserve liberty to apply.
5. I will hear submissions on costs.

Last Modified: 10/04/2002