Townsend v Nichols

[2008] NSWSC 466

CITATION:	Townsend v Nichols & Anor [2008] NSWSC 466 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Not applicable - matter determined on the papers.
JUDGMENT DATE :	6 June 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
DECISION:	Paragraph 49
CATCHWORDS:	Family Provision. Application by sister of deceased who lived with his sister from time to time. Plaintiff claims to be dependent by virtue of interest free loan made to her by the deceased. Dependency established. Order for provision.
PARTIES:	Helen Townsend v James Nichols & John Hurst (The Estate of the late Colin Joseph Nichols)
FILE NUMBER(S):	SC 2043/2007
COUNSEL:	Mr PM Jeffriess for plaintiff Mr G Rundle for defendants
SOLICITORS:	Hanson Lawyers for plaintiff Connah Steed & Co for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Friday 6 June 2008

2043 of 2007 HELEN TOWNSEND -v- JAMES NICHOLS & JOHN HURST (THE ESTATE OF THE LATE COLIN JOSEPH NICHOLS)

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Colin Joseph Nichols who died on 14 July 2006 aged 58 years. His wife, two children and a number of brothers and sisters survived the deceased. The plaintiff is a sister of the deceased.

Will of the deceased

2 Under the will of the deceased he appointed his brother, James Nichols and his accountant John Hurst his executors. Probate was granted to the executors on 12 October 2006. Mr Hurst has subsequently died. Under his will dated 14 June 2003 he bequeathed his home at Denham Close Moss Vale to his two daughters, Colleen and Carolyn. He gave legacies of $50,000.00 to his grandchildren and provided that the residue should be held as follows:

A one sixth part to his daughter Colleen Anne Nichols
A one sixth part to his daughter Carolyn Grace Nichols
A one sixth part to the The Australian Cancer Foundation for Medical Research
A one sixth part to the The Australian Quadriplegic Association Limited
A one sixth part to the The Salvation Army
A one sixth part to the The Paraplegic and Quadriplegic Association of New South Wales

The estate of the deceased

3 The deceased’s home at Moss Vale was valued for probate purposes at $600,000 and that has been transferred to the devisees. The balance of the estate consists of cash and shares valued at $5,945,366.19. The defendant’s costs in the proceedings on the basis that the matter is determined on the papers amount to $18,817.00. There are other liabilities and tax amounting to $29,492.

Family History

4 As I have mentioned the plaintiff and the deceased were siblings. The plaintiff was born in September 1945 and the deceased born in March 1948. The plaintiff married in 1966 and the deceased married in 1977.

5 The deceased had three children, Colleen Anne Nichols born in April 1968, Carolyn Grace Nichols born in October 1969. The deceased had a son, Colin, born in 1972 but he died before his first birthday.

6 Shortly after Colin’s death the deceased and his wife separated. The deceased started drinking heavily and he lived a nomadic life living in a caravan.

7 By 1976 the deceased started to rely on the plaintiff and her family to rescue him from situations when he found he could not cope. At this time he was spending periods living in caravan on the plaintiff's property or living in her house.

8 In 1982 the deceased was seriously injured in a motor vehicle accident and he became a partial quadriplegic. In 1984 he received compensation of approximately $1,000,000.00 in respect of injuries sustained in the motor vehicle accident.

9 The deceased purchased the property at Denham Close, Moss Vale.

10 In the mid 1980s the deceased lent the plaintiff and husband $10,000.00 to pay off a mortgage to relieve their financial situation. There was no agreement for payment of interest or agreement when the loan should be repaid.

11 In 1993 the plaintiff offered to repay $10,000.00 to the deceased but he refused the offer.

12 The deceased made his will on 14 June 2003 and he died on 14 July 2006. Probate was granted and these proceedings were commenced within time.

Eligibility of the plaintiff

13 The plaintiff claims to be an eligible person who at any particular time was wholly or partly dependent upon the deceased and who was at that particular time or at any other time a member of the household of which the deceased person was a member.

14 I turn to the question of whether the plaintiff was a member of the household.

15 Is necessary for the plaintiff to establish that she was part of the deceased’s household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford dictionary:

"The ‘holding’ or maintaining of a house or family; house keeping; domestic economy. The inmates of a house collectively; an organized family, including servants or attendants, dwelling in a house; a domestic establishment".

16 His Honour Mr Justice McLelland in Munro v Lake (unreported, NSWSC, 8 February 1991) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

17 117 In Markulin v Drew (Supreme Court, 12 August 1993, unreported) Young J dealt with the matter at some length. He said:

“In Benney v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to member; of the insured's household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants. The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580, Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said "The circle of those 'in' is larger than those 'of', a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person 'in' the household of the insured and an uncle, temporarily a guest of the insured's father was held to be of that description." See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606, where a live in farmhand was held to be a person in the household but not of the household. In that case Schroeder JA in the Ontario Court of Appeal said that a person "'in the household' can more easily disengage himself from that relationship or association than a person who falls within the more intimate category ...". It is to be noted that in the instant statute the words are "of the household".

In Kingsland v McIndoe [1989] VR 273, Gobbo J had to look at the words "member of the household" under the Victorian Crimes (Family Violence) Act. His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word "household".

In the Court of Appeal in Benny v Jones it would not appear that any of the authorities which I considered in my judgment or those which Gobbo J considered in Kingsland's case were referred to the Court. Priestley JA, however, did deal with the question of what is a household in (1991) 23 NSWLR at 564. From the report it would not appear that any of the decisions referred to in my judgment on the question of household were referred to the Court of Appeal or that they looked at them. Priestley JA merely said: "I do not see there is any meaning of the phrase 'a member of a household of which another person was a member', which would not encompass the way in which the plaintiff lived in the same house as his friend for three and a half years”. Although Priestley JA has given the leading judgment in the majority of the cases on this Act that have gone to the Court of Appeal and anything that falls from his Honour is of tremendous value whether obiter dicta or otherwise, I think it would be inappropriate to put too much weight on this dictum if it is out of line with other judicial pronouncements on the concept of household.
Needham J in Moloney v Goodwin - 1 August 1989, was clearly of the view that before one could have a household one had to have a quasi family unit. Whilst a mere boarder would not be "of the household" a boarder who supported the deceased like a brother or son might have done, did qualify. In the instant case Mr and Mrs Markulin and their daughters on any description of the word "household" constituted a family unit. There is no doubt that Mrs Markulin was a member if not a co head of that family and household. The problem is whether, on the evidence, the deceased was a member of that household, at least between 1982 and 1985.
In Munro v Lake - 8 February 1991, unreported, McLelland J considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household. His Honour, after referring to my decision in Benny v Jones and Kingsland v McIndoe [1989] VR 273 said: "The concept of membership of a household ... connotes a degree of continuity and permanency of mutual living arrangements ...". He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household.
In Wagstaff v Wagstaff a decision which Windeyer J gave when a Master on 6 November 1991, his Honour had to deal with situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday, but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter and then change back into his suit to go home.
Windeyer J said that there was no doubt at all that the principal household of the deceased was with his wife, but then said: "The question is whether or not he was also a member of the household of [Nancy] ... I accept that it may be possible in special circumstances to be a member of more than one household at the same time. Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient. ... It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs.
"Windeyer J's statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother's home and the father's home. The child would clearly be in two households. Likewise the Mr Green to whom Mr Justice Windeyer referred who had a legal wife and two de facto wives whom he kept in ignorance of each other's existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder. Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household even though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased's suite at the Airport Hilton Hotel. It is not necessary to go into that matter further.
The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95 to 120. I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the Court could possibly have made an order. It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child. Thus, a fellow bird watcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words "intimate connection" I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend.”

18 As I have mentioned the plaintiff lived a nomadic lifestyle from 1972 until 1982 and during this time he was drinking heavily and smoking marijuana. He spent time in various psychiatric hospitals. The plaintiff gave evidence of the relationship during this time as follows:

13. During the period from 1976 to 1982 I received telephone calls seeking assistance for Colin. Some of these calls came from Colin himself, some from hospital staff whom Colin asked to ring me, and sometimes the calls were from other people on his behalf. The assistance sought was usually to go and pick him up when he could not cope with living on his own and take him to live with us. On one occasion, we were rung by the proprietor of the Windang Caravan Park who told me that Colin was behind on his rent. This involved Brian and I driving to the site where his caravan was parked, paying his outstanding bill (I recall that we did not have much money, so left a gas bottle as part payment) and towing his caravan to our house at Moss Vale. In that period, Colin did not have a car. When he was in hospital, we would go to the hospital to pick Colin up and then to wherever his caravan was parked to collect it. When Colin was well enough to leave we would drive him and his caravan to his destination. We picked Colin up from caravan parks on a number of occasions throughout the 1970s and early 1980s.
14. I recall that on at least one occasion, we collected Colin from Gladesville Psychiatric
Hospital, once from Wollongong Hospital and once from Bendigo Hospital.
15. In the second part of the 1970s and early part of the 1980s, I think that Colin spent20% to 40% of this period at our house.
16. When his caravan was at our house, Colin would sometimes spend much of his time in his caravan parked in our yard. However, I cooked all his meals as I did for the rest of the family, did all his washing and myself and Brian would drive him to various destinations when he asked. He showered in our bathroom and ate all of his meals in the house with the family.
17. On occasions, Colin would not sleep in his caravan, but would sleep in a spare bedroom in our house. During these periods, Colin lived in our house just as any other member of our family. He ate with us, spent time watching television or conversing with us and kept his clothes and personal effects in the house. He sometimes lived in the house with us for up to four months at a time.
18. When Colin was staying with us, he was as much a member of the house as any of us. He was free to use all of the facilities, he helped himself to food and the like and he was always welcome in the house.
19. When Colin was staying with us, we also took him to doctors in an attempt to get him help with his psychiatric problems.
20. I always responded when Colin rang for help and never refused his requests to stay with us.
21. I was always prepared to allow Colin stay with us when he needed to and never asked him to leave, either when he was living in the house or sleeping in his caravan.
22. On two occasions while Colin was staying with us, he slit his wrists in our house. Once in the bathroom and once in the lounge room. This was very distressing for both myself and particularly for my children. On each of these occasions we arranged medical care for Colin.
23. During this period, Colin worked sporadically. Neither I nor my family ever charged Colin rent for the time he lived with us.

19 There was no objection in terms of admissibility to the plaintiff’s evidence on this aspect. It seems to me that having regard to the factors in paragraph 17 and in particular the fact that one of these periods continued for some four months that the deceased was at that stage a member of the household.

20 I turn to consider the question of dependency.

21 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at 490-491 said the following:

"His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

22 His Honour analysed the facts in the case and referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms:

"Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. ‘The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

23 This passage emphasises the factual nature of dependency be it financial or otherwise.

24 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

25 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'.
If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a stepchild or his or her stepmother when the child lives with the stepmother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

26 In McKenzie v Baddeley (Court of Appeal, 3 December 1991 unreported), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant “more than minimally” or perhaps “significantly”.

27 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

28 It will be recalled that the deceased received his compensation payment in 1984. The relevant evidence in respect of dependency is as follows:

“29. In about the middle of the 1980s, Brian and I borrowed approximately $10,000.00 on the security of our house (which was already subject to a first mortgage) to pay for some renovations to our house. We owed a total of approximately $65,000.00 We also owed $16,000.00 in relation to a car loan. Interest rates at the time were high and were rising higher. In approximately 1985 Brian was working as a mine deputy at the Brimstone colliery. The mine hit a significant downturn and as a result Brian's hours were greatly reduced. This significantly reduced Brian's earnings. We were struggling to meet the loan repayments to the Commonwealth Bank. We were in danger of losing our house. The bank had written at least two letters to us concerning the amount outstanding. I approached Colin and told him of our situation. I asked if he could lend us $10,000.00. Colin advanced us the sum of $10,000.00 to pay out the loan so we could cope with our mortgage. This money enabled us to service our debt. No mention was made of any interest to be paid on the amount we borrowed and we never paid any interest. I remember telling Colin words to the effect
'I don't know when we will be able to pay you back'.
30. In 1993, our mother died. When I received a share of her estate, I offered to repay the loan but Colin said words to the effect
'Look, I don't need it. I'm okay'.
31. We never repaid the money Colin gave us.
32. Approximately three months after Colin lent us the sum of $10,000.00, our lawn mower broke down and Colin purchased a new one for us.”

29 Once again there was no objection to the admissibility of this evidence. The plaintiff’s submission was that she was at risk of losing her home and that the loan provided by the deceased avoided that risk and thus she was dependent upon him as the means of saving her home. Plainly there was no agreement for interest and so it was an interest free loan. It was suggested that provision of an interest free loan made her dependent to an extent that was more than minimal or insignificant.

30 The problem with this submission is that the affidavit evidence does not set out the extent to which the loan saved repayments on the home. Assuming that the benefit could be measured in terms of interest foregone by the deceased at 10% interest rate the amount would be $1,000 per year which is not particularly significant. The more appropriate matter would have been the reduction in loan repayments as a result of the interest free loan.

31 On another level the question is whether there is dependency where the loan is given without any terms as to repayment. In these situations the loan is repayable upon demand. In accordance with the usual principles the loan would be repayable upon demand although no demand was necessary for the debt to be due. See Collins v Benning (1701) 12 Mod Rep 444, Re McHenry, McDermott v Boyd, Barkers Claim (1894) 3 Ch 290, DFC New Zealand Ltd v McKenzie [1993] 2 NZLR 576 and Drinkwater v Craddyrack Pty Ltd (No 3) (Supreme Court of NSW Young J, 28 November 1997 unreported).

32 As the loan can be called up immediately it could only be regarded as of momentary significance. However, as the cases say one has to consider the fact of dependency. In the circumstances of this case the loan was not called up and in fact there was dependency during the period of seven to eight years. The evidence does show that the provision of the loan enabled the plaintiff and her husband to cope with repayments of their mortgage during this period of reduced income. In my view the provision was more than “minimally” and thus dependency is established.

33 I turn to the question of whether there are factors warranting the making of the application.

34 Under s 9 (1) of the Family Provision Act it is necessary for the Court to first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

35 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

36 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter (Court of Appeal 13 November 1998, unreported) a decision of Sheller JA, Sheppard AJA 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 that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

37 I have set out above the care which the plaintiff provided to the deceased. There is other evidence of the care provided to the deceased after he purchased the home at Moss Vale. It was care at the plaintiff’s house when she and her family were on call when the deceased needed it. The defendant conceded that if there were factors warranting on all these facts and I am satisfied there are factors warranting the making of the application.

38 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 209-210 the High Court 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 in life

39 The plaintiff is 62 years of age. She is married and she and her husband have no dependent children. They own their home at Moss Vale with an estimated value of $500,000, household furniture and effects, and a 1993 Toyota Land Cruiser with an estimated value of $8,000. They have joint superannuation valued at approximately $316,000.

40 Their joint income is approximately $500 per week which consists of the aged pension and an allocated pension from the superannuation fund. They are accessing the capital in the superannuation fund in order to receive this level of income. They claim they cannot take any significant capital out of the fund because they would be left with insufficient funds for support. They estimate their expenses at $620 per week. There are a number of things they would like to do and for which they would need some capital sum which is not available to them. They are as follows:

(a) Cost of carpeting $9,553.
(b) Cost of retiling the ensuite in the sum of $7,500.
(c) Cost of fully ducted heating in the sum of $6,996.
(d) Cost of access for a wheelchair in the sum of $3,500.00.
(e) Cost of repainting the house in the sum of $5,995.
(f) Cost of a new replacement motor vehicle $73,450.

41 They would like to have an overseas holiday and suggest that $50,000. would be appropriate.

42 There are other matters they would like to be able to do and they involve assistance to other family members for whom they are not responsible. They are not relevant to my consideration of whether the plaintiff has been left without adequate and proper provision for her maintenance, education and advancement in life.

43 The plaintiff requires a knee reconstruction which will involve an expense of $1,500.

44 The plaintiff seeks provision in the sums which I have indicated above. They total $156,994. She also seeks a contingency sum of between $200,000 and $250,000.

45 The plaintiff’s claim has to be seen in the light of the actual relationship which gives rise to the claim. Although she was obviously devoted to her brother and put up with many difficulties as a result of his problems, it is not as though she was a partner or child of the deceased. I would not have thought a substantial sum for any contingency fund would be appropriate in these circumstances.

46 No evidence has been placed before me detailing the situation in life of the two children of the deceased nor was there any evidence of the deceased’s relationship with the charities benefited under the will. However, having regard to the nature of the deceased’s disabilities it is obvious that the deceased wished to benefit a number of charities who assist people afflicted as he was afflicted after his car accident. I should mention that the plaintiff does not suggest that any provision for her should come from the children’s share but should fall on the share passing to the charities.

47 The estate is a large one and the question of what is an appropriate provision in respect of a large estate is dealt with by Young J in Anasson v Phillips, 4 March 1988, where he said the following:

"... with a very large estate ... there is a great temptation on a court to be over-generous with other people's money. This is especially so when the court can see that plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes and there is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the court has no power to re-write the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty.
If the estate is a large one, the court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix is a relevant factor. These principles all, I think, flow from cases such as Re Buckland (1966) VR 404, especially at page 412."

48 Although questions of lifestyle are not relevant the assistance given was real and for many years. In these circumstances a sum of $200,000 is appropriate.

49 The orders I make are as follows:

1. The plaintiff receive a legacy of $200,000 charged on those parts of residue passing under clause 5 C,D,E, and F of the deceased’s will.
2. Interest is to be payable on the legacy if not paid within one month from today’s date at the rate fixed under the Probate & Administration Act 1898
3. The plaintiff’s costs on the ordinary basis and the defendant’s costs on an indemnity basis to be paid out of the estate of the deceased.
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12/06/2008 - Orders have now been numbered correctly in para 49. - Paragraph(s) 49