Sprowles v Bertoldo

[2007] NSWSC 1255

CITATION:	Sprowles v Bertoldo [2007] NSWSC 1255
HEARING DATE(S):	01/11/07. 02/11/07
JUDGMENT DATE :	6 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	6 November 2007
DECISION:	Paragraph 61
CATCHWORDS:	Family Provision. Application under the Family Provision Act 1982 by a daughter. Consideration of relationship between plaintiff and deceased. Deceased evicted plaintiff from the deceased's home. Order for provision made. No matter of principle.
PARTIES:	Vicki Sprowles v Wendy Lee Bertoldo & Anor
FILE NUMBER(S):	SC 4047 of 2005
COUNSEL:	Mr CJ Bevan for plaintiff Mr K Morrissey for defendants
SOLICITORS:	Turner Freeman for plaintiff Warren F Ball & Co for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

TUESDAY 6 NOVEMBER 2007

4047/05 VICKI SPROWLES v WENDY LEE BERTOLDO and ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Loris Erna Fay Sprowles who died on 23 November 2004 aged 75 years. She was survived by her two daughters who are the plaintiff and the first defendant.

The will of the deceased

2 The deceased’s last will was made on 30 October 2003 and the main bequest was a gift of one third residue to the plaintiff and two thirds residue to the first defendant.

3 No Probate was obtained but the plaintiff obtained a grant under section 41A of the Wills Probate and Administration Act 1898 for the purposes of the proceedings.

Estate of the Deceased

4 The estate of the deceased consisted of cash, jewellery, and a motor vehicle and its gross value was estimated at an amount of $10,143 98. The plaintiff's costs on a party and party basis are estimated at $78,400 and the first defendant’ costs at $69,048.

5 There is a prescribed transaction which occurred when the deceased sold her home in 2002 and paid the proceeds of $481,000 to the first defendant and her husband's superannuation fund. She also at this stage signed a binding nominating form nominating the beneficiary in favour of the first defendant. The parties are agreed that this is in fact a prescribed transaction.

6 There was also a gift of $70,000 on 1 July 2004 by the deceased to the first defendant. There is no agreement in relation to the estate but it was conceded in submissions that it was made with the relevant intention to defeat the plaintiff's claim and therefore it is also a prescribed transaction.

Family History

7 The deceased was born on 4 October 1929 and she had two children, the plaintiff Vicki born on 17 October 1955 and the first defendant Wendy born on 4 May 1957.

8 In 1968 the family moved to Riverstone. It was in 1974 the first defendant left the home and started to make her own way of life. The deceased herself suffered a stroke in February 1986.

9 The plaintiff had been working for some time at a company Makita when, on 30 June 1986, she suffered an accident. She fell down the stairs and hit her head and started to suffer from medical problems. These problems included chronic fibro myalgia syndrome, chronic pain from the industrial accident, sleep disturbance, chronic fatigue syndrome, poor mobility, neuro cognitive impairment and psychosis.

10 The first defendant married her husband in 1990. The employment of the plaintiff finally terminated on 7 December 1992. At that stage her 12 year de facto relationship with Graeme Dorman had come to an end. After living by herself for a short time she moved to live with her mother, the deceased, on 1 October 1993.

11 The plaintiff was involved in litigation concerning her accident for some years. Originally in her trial in this Court she received an award of $1.4 million. That was finally overturned on appeal [see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 AT 752.]

12 As a result of that the plaintiff in due course was involved in other proceedings with her former solicitor and ultimately, in 1999, she received a sum of $215,000 after substantial expenditure on costs.

13 The plaintiff lived with the deceased from 1993 at the deceased's home at 62 Roxburgh Park Road, Castle hill and that continued until 2 July 2002 when her mother evicted her from the home. I will go into the details of that later.

14 At that stage the first defendant and her husband had by then moved to occupy a home at Kenthurst.

15 On the 21 November 2002 the deceased sold her home for $495,000 and she then moved in to the granny-flat of the home of the defendant at Kenthurst. In November 2002 she transferred $481,000 to the first defendant and her husband's superannuation fund. At that stage she was aged 73 years and was not employed.

16 In July 2003 the first defendant and her husband purchased a food distribution business which they still hold at the present time.

17 The deceased made her will on 30 October 2003, as I have already recounted. On that day there was also a binding nomination of beneficiary form signed by the deceased and the defendant. There was also a resolution of the trustees of that superannuation fund to bind them to accept that nomination.

18 On 1 July 2004 there was a gift of $70,000 to the first defendant by the deceased. The deceased died on 23 November 2004 and, in due course, these proceedings were commenced within time.

19 In the course of the hearing before me on 2 November 2007 the parties sensibly reached agreement as a compromise in respect of the notional estate and I will refer to that in greater detail later.

Eligibility

20 The plaintiff is plainly an eligible person under the Act. 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 from arrangements to pay creditors”.

The plaintiff’s situation in life

21 The plaintiff and 52 years of age, single, and has no dependants. She lives in shared accommodation for which she pays $200 per fortnight. Her income is $611 45 per fortnight by way of a pension, and her expenses are presently running at $700 per fortnight, in excess of her income.

22 Her asset position is as follows. She has cash $9,090, a motor vehicle worth $1,000, jewellery worth $1,000 and the balance of her superannuation, an amount of $133,187.61. This is the amount that remains from the $215,000. Most of it, including $60,000 paid just recently, has been used to meet her legal expenses.

23 She also has another asset and that is under the terms of settlement there is an agreement that she should recover the costs against the first defendant and, accordingly, she should recover a substantial amount of the party and party costs to which I have already made reference.

24 So far as her medical condition is concerned evidence was given by Dr Scott and her report dealt with a number of matters, including a diagnosis of the impact of her illness, and also her prognosis. The details of those are as follows:

“Ms Sprowles’ symptoms are generalised pain, persistent fatigue, sleep disturbance, exhaustion after exercise and neuro-cognitive impairment are consistent with a diagnosis of cropped chronic fatigue syndrome (Fukuda et al 1994; The Royal Australian College of Physicians, ,Chronic Fatigue syndrome, clinical practice guidelines - 2002).

Symptoms have been severe chronic and are associated with significant disability. Fatigue symptoms have been associated with fluctuating symptoms of depression and anxiety and impaired motivation. Her symptoms of depression are consistent with a diagnosis of major depression (American Psychiatric Association - DSM IVR).

She has been diagnosed with fibro myalgia in the past. She reports ongoing symptoms of chronic, generalised pain and tenderness. However, as this condition is outside of my area of expertise I am unable to comment in any further detail. Nor am I able to comment on nature, severity or prognosis of the bladder problems.

Are multiple medical problems have, however, have combined to increase her disability and stripped of the level of function. Her sleep problems and fatigue have been exacerbated by pain and urinary problems. Problems with tiredness and poor motivation is secondary to depression are likely to have restricted ability to comply with rehabilitation interventions for her physical symptoms.

Impact of her illness

Ms Sprowles has experienced significant disability as a result of her illness. According to her report on the available medical record, she has experienced significant disability. Her illness has impacted on her social and occupational function. She has become increasingly isolated from friends and from participation in the community.

Her illness is also likely to have had an adverse impact on her family relationships. It is probable that a combination of irritability, depression and poor stress and frustration tolerance increased the level of conflict between herself and her mother during the period that she was residing with her. These factors are likely to have contributed to the volatile relationship between herself and her mother and to their subsequent estrangement prior to her mother's death.

….

Prognosis

Given the chronicity and severity of Ms Sprowles symptoms, her prognosis for recovery is poor. Symptoms of chronic pain, sleep disturbance and fatigue have persisted over the last 15 years. Her symptoms have not responded to treatment interventions and she has been unable to participate in appropriate rehabilitation interventions. She is likely to experience adverse health problems in the longer term as a consequence of poor mobility, nutrition and sleep disturbance."

25 Plainly the plaintiff is in a situation where she will not work again and she has problems which impact on her living and how her life is conducted. The plaintiff did receive some benefits from the deceased, particularly in a period when she was living with the deceased when she was having her litigation. Apart from the ability to live with the deceased as an adult, the mother also paid $4,000 for a credit card and contributed some $45,738 to her legal expenses in this period. I will come back later to deal with the relationship between the plaintiff and the deceased.

26 It is also necessary to have regard to others having a claim on the bounty of the deceased. In this case the only person is the first defendant, Wendy Bertoldo. She is married, 50 years of age and has a son Nicholas who is still at school. She and her husband work in their business at the moment and they take $4,248 per month which covers their expenses. Her assets are set out in her most recent affidavit.

“(a) My current assets held with my husband Robert are:
Interest in R & W Bertoldo Superannuation Fund as at 30 June 2004 (2005 Accounts not finalised) $142,800.00

GEMI Investment as at 30 September 2007 $337,391.35.
4 Wrench Place, Kenthurst worth approx $800,000.00

Shares in Leckway Pty Limited ATF R & W Bertoldo Family Trust $2
35 Sierra Avenue, Bateau Bay worth approx $300,000.00
Nissan Patrol (Over 10 years old) worth approx $8,000
Furniture in 4 Wrench Place, Kenthurst $2,000.00
Other IAG shares (held by Robert only) approx $1,000.000
Total $1,591,193.35
(b) Our current joint liabilities are:
Line of Credit by way of loan from Citibank to Leckway Pty Limited secured over the Kenthurst Property $705,800.00
CBFC - Lease on refrigeration for Business (personal debt) $135,000.00
Rams - Mortgage on Bateau Bay $235,000.00
Total $1.075,800.00
(c) The difference between our assets and liabilities is $515,393.35.”

27 That paragraph, however, paints a quite misleading picture of the first defendant’s financial position as it omits the value of the business but includes liabilities incurred on its purchase.

28 Leckway Pty Ltd is the trustee for a trust, a company which purchased the business. The purchase price for the business was $410,000 but in addition the first defendant and her husband purchased stock on the taking over of the business of $440,000. At that stage they had no liabilities and they borrowed $850,000, which was the effective cost to them of going into the business. Plainly, although there are personal borrowings, the value of the business should have been included in this statement of assets. The first defendant is a qualified accountant and did not put forward any information as to the value of the business until she was challenged in the witness box, when she claimed it was not worth what they had paid for it.

29 The principle regarding the disclosure of a party's financial position are important in these matters and also in matters to do with family and rearrangement or property settlement. The Family Court of Australia in its jurisdiction has consistently held that there is a clear obligation on a party to proceedings at court to make full and frank disclosure of all financial circumstances. That Court has adopted what was said by Lord Brandon for the House of Lords in Livesey v Jenkins (1985) AC 424 at 437:

“I stated earlier that, unless a Court is provided with correct, complete and up to date information on the matters to which, under section 25 (1), it is required to have regard, he cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present claims) owes a duty to the Court to make full and frank disclosure of all material facts to the other party and the Court. This principle of full and frank disclosure in proceedings of this kind has long been recognized and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory Provisions to which I have referred.”

30 I have also taken the same approach in this jurisdiction (see Taggart v Gaston 7 December 1992). A similar approach is also taken in the Equity Division in Family Provision Act matters (see Westreat v Corban, Young J, 29 September 1989. In the judgement in Taggart v Gaston I referred to the need to identify in this context the amount of the assets which had not been disclosed to the Court pursuant to the obligation which I accept that arose in the proceedings. Such obligation incidentally arises independently of any order to make appropriate discovery.

31 In this case there are some indications that the business has some value. Notwithstanding the first defendant’s protestations, it is apparent that the borrowings on the original purchase have been reduced by $150,000 and the business purchased another item of plant some years ago at $250,000 in respect of which there are substantial reductions in the borrowings. In the absence of any evidence to the contrary, I would infer that the business has a value at least what it was purchased for in 2003, namely, $850,000.

32 The first defendant and her husband are still working hard in the business and earning funds. Their net assets are in the order of $1,365,000. So far as benefits to the first defendant are concerned there are, of course, two prescribed transactions to which I have earlier referred.

33 The fundamental problem in this case is the relationship between the plaintiff and the deceased. There was a complete breach in July 2002 when the plaintiff was evicted from the deceased's home. This went to the length of having formal solicitors letters giving her notice to terminate her right of occupation and a security firm coming to evict her from the premises.

34 Section 7 of the Family Provision Act provides if they Court is satisfied a person is an eligible person:

“It may order that such provision be made out of the state or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances of the time the order is made to be made for the maintenance, education or advancement in life of the eligible person."

35 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word ‘ought’ in s 7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.

...


It seems plain from the comparison of the two Acts, and particularly from s 3 of the 1916 Act and s 7 and s 9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.

The Act draws a distinction between the eligible persons referred to in par (a) and par (b) on the one hand and par (c) and par (d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased person spoken of in s 3 of the 1916 Act and s 7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.

In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin JJ both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that ‘many cases suggest that an applicant must show a moral claim ...’, he went on to say that this was a gloss on the Act that was unwarranted and inconsistent with the language of the legislative scheme.

It seems to me that the introduction into s 7 of the present Act of the word ‘ought’ in replacement of the words from s 3 of the 1916 Act ‘as the Court thinks fit’ shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word ‘ought’ seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par (c) and par (d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par (a) and par (b) although it is unnecessary to decide that in this case.”

36 Meagher JA (NSWLR at 57) agreed with Priestley JA. Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:

“Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.” (Emphasis added)

37 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

38 In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That questions remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1
Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

39 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. In the course of doing so, his Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation.”

40 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales’ case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. ... In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

41 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales’ case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; ... Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

42 Bryson J in any event distinguished Scales’ case (p 11) on the basis that on the facts before him the plaintiffs:

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ...”

43 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case, a widow who had been married less than one year to a sixty-eight year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at p 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that ‘we doubt this statement provides useful assistance in elucidating the statutory provision. Indeed, references to ‘moral duty’ or ‘moral obligation’ may well be understood as amounting to a gloss on the statutory language’. They then say ‘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 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.”

44 Young J also observed:

“In Fraser’s case, Kirby P at p 29 said that ‘I do not consider that it would be safe for this court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning ‘moral duty.’ However, his Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law ‘either by the observations of the majority in Singer or by the High Court’s reference, in the footnote to what Murphy J said earlier (p 27).’
Handley JA thought that the dicta in the High court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.
Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p 42, ‘the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficiently to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

45 The concerns expressed about any change in the law as a result of Singer v Berghouse were recently put to rest by the High Court in Vigolo v Bostin [2005] HCA 11 at 25, 74-75 and 121.

46 In Walker v Walker (p27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases showed that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant….”

47 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:

“112. I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (p) of the definition of "eligible person" in S6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds."

48 The plaintiff's explanation for what happened concerning the eviction was set out in her affidavit in paragraph 30 in these terms. I have omitted the non-admitted parts thereof:

“ In 2002 I left my mother's home to live with my housemate. My mother and I were having some serious arguments before I moved out of her home. As an adult and especially as I was constantly seek an unemployed at that time, I found it very difficult to live with my mother at times, as my mother treated me like an infant child. In 2001, my mother started to see a man (Jim Fraser).
Me (second conversation):
‘Wendy, Mum is talking about going to live with Jim Frazer. She drove through a red light and has crashed the car three times, so why don't you put that into the RTA and she refuses to hand in her licence”
My sister: ‘ Oh well, Nicholas doesn't get in the car with her, so it's not a big problem to me’.
Me: ‘Don't you care if Mum gets killed or kills someone else’.
My sister: ‘If I put her in, she will write me out of her will. You can do it if you want to’.
Me: ‘She will throw me out if I do it’.
It was soon after this that my mother said to me, ‘Wendy told me you’re going to put me into the RTA to try and get my driver's licence cancelled.’ It was then that my mother and I started to have serious arguments and what not one occasion she threatened me with violence."

49 After leaving she did not see the deceased again.

50 In this case there was deep bitterness between the two sisters. It is plain, as the plaintiff says, it is very deep; she hates her sister and the kind of breach there is between these two ladies is something that I have rarely seen before in cases in this Division. In these circumstances, as the deceased was living with her sister, it was quite unlikely the plaintiff would feel able to either go and see her mother or try and contact her.

51 The episode in the affidavit is not denied by the plaintiff. Plainly there were difficulties in the relationship in the years when the plaintiff lived with her mother. The plaintiff had her own problems as a result of her fall and these were well known to her mother. Her mother referred to them in a statement which she made in support of her daughter’s court case, although it must be looked at in that light. Ultimately what she wanted to do was be by herself. They were very similar people and it got too much for both of them.

52 In the scheme of things, this was a breach which occurred in 2002, just two years before the death of the deceased. The separation was for a short time and, bearing that in mind, I do not think that that particular separation and what happened after should impact upon the plaintiffs claim on the estate of the deceased. It was probably one of those situations where the position was arrived at where it was beyond the ability of either the deceased or the plaintiff to deal with.

53 It is necessary to see how the plaintiff says she has been left without adequate and proper maintenance, education and advancement in life. She advances three matters in this regard. Firstly, she wants to buy a small two or three bedroom house in the locality for about $%320,000. Her car is old and she needs to replace it at a cost of $25,000. She also expresses a need for a contingency fund of $75,000 because of the shortfall in her income and proposes to pay the costs in respect of the purchase of a home. I do not have the benefit of any comparison of shortfall and the use of tables to justify the amount of this sum.

54 The question of whether it is appropriate to give a child provision for a home has been the subject of comment in a number of cases. In Shearer v The Public Trustee, and Hawke v The Public Trustee, Young J (unreported, NSWSC, 29 March 1998) his Honour had this to say:

“The community’s attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.
Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own.”

55 The matter has been re-visited more recently in McGrath v Eves [2005] NSWSC 1006, by Gzell J where his Honour referred to the Courts approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:

“67. When it comes to children, as Young J observed in Shearer v The Public Trustee , NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adult's earning a living have no claim, his On pointing out that such a proposition in relation to resources of any size was quite erroneous.
68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110]. White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [ 2003] NSWCA 352.
69. White J’s decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features of the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the Estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her well being. Thirdly, the applicant did not have any need in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.
70. It was submitted that Mayfield was distinguishable by the absence of these features in instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.
71. There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to
White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the Court ought to order."

56 In this case the plaintiff has not worked since 1986 and is unlikely to ever return to the work force. If she had a home she would not have the expense of rent and might even save some money. There is no question of her borrowing funds to assist in the purchase of a house because she is not in a position to repay any loan.

57 The matters to which Dr Scott pointed are relevant to her ability to share accommodation. It would be preferable for her to have her own house so she can accommodate her medical problems without impinging on other home shareholders.

58 The first defendant and her husband on my findings have been working hard but have substantial assets. Funds of $337,091 are still held by them in the superannuation fund.

59 Any decision on whether it is appropriate for the plaintiff to have a home must take into account the first defendant's claim on the bounty of the deceased and her asset position. I note the defendant and her husband cared for the deceased in her last years of her life.

60 In my view it would be appropriate to allow sufficient for the plaintiff to have a modest home. The plaintiff still has $130,000 in her bank account, plus she has the right to recover, under the terms of settlement, her party and party costs. Those funds provide an adequate buffer for and are more than sufficient for her to purchase a car. In my view an additional $350,000 is warranted.

61 There are certain short minutes of order which the parties have signed. Item 1 is expressed in terms that certain items can be considered as notional estate and it then talks about the superannuation fund and interest on that account of $47,000. The problem with that order is that it is necessary for the order to specify a particular property which is to be designated as notional estate. What I propose to do, subject to any comments of the parties, is to make the following orders:

1. I designate the first defendant’s GEMI Investment and her interest in 4 Wrench Place, Kenthurst as notional estate to the extent necessary to meet the orders made hereunder.
2. That the provision be made out of the notional estate of the deceased pursuant to section 7 of the Family Provision Act 1982 in the amount of $350,000.
3. The first defendant to pay the amount of $350,000 to the plaintiff.
4. No interest to run on the amount of $350,000 if paid within 28 days of today, otherwise interest is to run at the rate applicable under the Supreme Court Rules.
5. The first defendant is to pay the plaintiff's costs as agreed or assessed on the usual basis out of the notional estate of the deceased.
6. There will be no order as to the costs of the first defendant.

62 There is also a motion to join the defendant's husband as a party which motion was filed on 15 October 2007. That is not needed and, pursuant to the consent orders, in respect of that matter I order that the motion filed by the plaintiff on 15 October 2007 to join Robert Bertoldo as a defendant be dismissed and I order there be no order as to the costs of the motion.

7. I order the exhibits be returned.

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