Varnel v Heyes

[2008] NSWSC 978

CITATION:	Varnel v Heyes [2008] NSWSC 978
HEARING DATE(S):	14/08/08, 13/11/08
JUDGMENT DATE :	21 November 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
CATCHWORDS:	Family Provision. Application by defacto partner of deceased. Partners for 8-1/2 years. No contribution to estate. Whether appropriate to allow provision of funds for a house. Held in circumstances not appropriate. Plaintiff with large Centrelink debt. Whether provision would still be for her benefit or contrary to public policy. Orders made for trust for plaintiff.
PARTIES:	Gillian Varnel v Mark David Hayes (Estate of the late Ernest Joseph Heyes)
FILE NUMBER(S):	SC 5467/2007
COUNSEL:	M Meek for plaintiff J Clifton for defendant
SOLICITORS:	John Hall Lawyers Pty Ltd for plaintiff JP Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 21 NOVEMBER 2008

5467/07 GILLIAN VARNEL v MARK DAVID HEYES (ESTATE OF ERNEST JOSEPH HEYES)

JUDGMENT

1 His Honour: This is an application under the Family Provision Act 1982 in respect of the late Ernest Joseph Heyes who died on 29 December 2006 aged 67. The deceased was survived by the plaintiff who was his de facto partner at the date of death. The deceased was also survived by his son, the defendant and his wife, Anne Orr Heyes, from whom he had been separated. She has been give notice and makes no claim.

The last will of the deceased

2 The deceased’s last will was dated 23 December 2002 probate of which was granted to the defendant on 1 May 2007. Under that that will he gave the plaintiff a legacy of $50,000. The residue of his estate was left to the defendant, his son, who he appointed executor.

3 After payment of the plaintiff’s legacy of $50,000 the estate was comprised of the following assets:

Cash in teapot $10,000
½ share property at Railway Parade North Mulgrave $450,000
Proceeds of sale of business $ 85,400

4 $1,000 of the cash was distributed to the plaintiff and the balance used to pay the deceased’s funeral expenses.

5 The deceased owned the property at 4 Primrose Place Windsor as joint tenant with the defendant. On the death of the deceased his half share was worth $225,000 and the half share of the mortgage on the property was $172,612.55.

6 The parties have incurred costs in this matter. The plaintiff’s costs are $58,088.96 and the defendant’s costs $54,197.77 which total of $112,286.73.

Family history

7 The deceased was born in March 1939. The plaintiff was born in October 1939.

8 The deceased married Anne Heyes in 1968 and their son, Mark Heyes, was born in December 1974. Anne Heyes had two children by a previous marriage one of whom, Craig, died in 1985. In that year the deceased and a friend, Chris Quigley, started up a business, HQ Sheetmetal.

9 In 1989 HQ Sheetmetal moved to premises at North Mulgrave. The same year the deceased and his wife Anne separated. Apparently Ann received the deceased’s share in the jointly owned home at Wilberforce and the deceased received Anne’s shares in the business.

10 In 1991 their son, Mark, left school and started to work for HQ Sheetmetal.

11 In December 1996 the plaintiff, Gillian, who was a widow, met the deceased for the first time. In December 1997 the deceased asked the plaintiff to move in with him and in June 1998 she moved out of her Housing Commission home and moved in with the deceased at Catherine Street, Windsor. By this time a loan which had been taken out for the purchase of the land on which the business was carried on at North Mulgrave had been paid off. I accept the plaintiff’s evidence as to the date their de facto relationship commenced.

12 In June 1999 Mark left his father’s business and joined the army.

13 The deceased made his last will on 23 December 2002 some three and a half years after they had commenced living together. In September 2004 the deceased and plaintiff took an overseas holiday to England. On their return in December 2004 the deceased and his son, Mark, agreed to purchase a property at Primrose Place, Windsor, for $450,000. The deceased paid $100,000 towards the purchase price and with a loan he financed the balance of the purchase price in the sum of $350,000. That loan has been reduced to $343,000 and there have been contributions to the loan repayments by the defendant. The deceased paid the stamp duty and expenses on the purchase. In January 2005 the purchase of the Primrose Place property was completed and the deceased and the plaintiff moved into the property. The deceased died on 29 December 2006 aged 67 years.

14 On 1 May 2007 probate was granted and these proceedings were commenced within time.

Eligibility

15 The plaintiff is an eligible person. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation in life

16 The plaintiff is aged 69, she is single and has no dependents. She is in good health. She lives in the home in Windsor which has now passed by survivorship to the defendant. She owns the furniture in the house but otherwise she has no assets. She has a debt to Centrelink which is in the sum of $86,111.40. This was a result of her failure to disclose that she was residing with the deceased.

17 The plaintiff receives a pension of $630 a fortnight and she has expenses of $465 a week. She has received the legacy of $50,000 which has been placed in her solicitors trust account and now amounts to $42,343. This is less than her liability to them for costs.

18 The plaintiff and the deceased had a good relationship and their lifestyle suited them. The plaintiff did not contribute financially to the deceased’s assets. She did not work during the relationship but she made contributions to the cost of food from her pension. She carried out most of the domestic tasks.

19 It is necessary to consider the situation in life of anyone else who has a claim on the bounty of the deceased. In this case having regard to notices given to the deceased’s former wife and his step-daughter, the only person is the deceased’s son, Mark, the defendant.

The defendant’s situation in life

20 The defendant is aged 34 and is single with no dependents. He is employed by the Australian Army and he qualified in electrical engineering and completed courses with the Army.

21 He has a car worth $18,000, a motorcycle worth $8,000, furniture and personal items $8,000 and a half share in Railway Parade, North Mulgrave valued at $450,000 and Primrose Place property valued at $450,000.

22 He has a liability for the mortgage on the Primrose Place property which is currently in the sum of $345,225.

23 He has also received the proceeds of sale of the HQ Sheetmetal business which was $85,400.

24 There was a suggestion that there would be a capital gain tax liability on the sale of the factory land of $62,000. However, this did not take account of the exemptions applicable to small businesses in s 152A and 152B of the Income Tax Assessment Act 1997. In my view it is unlikely that there will be any liability.

25 The defendant has substantial loan repayments for the Primrose Place property and his monthly expenses for the repayment of the loan, some tax expenses, and other expenses amount to $3,730 a month. He receives income from his share of the property at Railway Parade, North Mulgrave of $3,200 a month. In addition he has his income from the army of $1496 per fortnight.

26 The defendant had a good relationship with his father, the deceased. He contributed to the repayment of the loan on the property at Primrose Place. He carried out extensive electrical work at Primrose Place which he estimates for labour which if he had charged would amount to some $8,500 and he spent $4,261 for materials.

Discussion

27 The plaintiff seeks provision of funds to enable her to purchase a two-bedroom unit in the Windsor area. Such a unit could be purchased at a cost including expenses of between $225,000 and $260,000. She will not be able to borrow to purchase a unit given that she only has the pension.

28 It is necessary to see whether this is appropriate in the circumstances of this case and having regard to the fact that she owes a sum of $86,111.40 to the Department of Social Security.

29 Although the plaintiff is not the deceased’s widow, it is useful to look at what has been said in respect to such claims before considering the application of such statements to what has been said in respect of claims of defacto spouses.

30 Widow's claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (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".

31 There have recently been reminders about the limited use of such

formulations. In Marshall v Carruthers [2002] NSWCA 47 Young JA said:

“73 It must be remembered that Powell J put his proposition as a “broad general rule”. However, there is in fact no “standard former spouse” to which one can just apply that proposition as a rule of thumb.

74 Powell J’s broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.

75 I also take this opportunity to reject Mr Ellison’s submission that a person who has a claim as a class (a) eligible person ipso facto has a stronger claim than a person who comes under class (b). Indeed, in many cases, such as where there are infant children, this may not be so.”

32 Palmer JA concurred with these sentiments.

33 The matter was again dealt within more detail in Bladwell v Davis & Anor [2004] NSWCA 170. In that case Bryson JA, with whom Ipp JA

concurred on this aspect, said:

“12 There have been many statements in judicial decisions, including decisions in the Court of Appeal, generally to the effect that primacy of some kind is accorded to claims of widows for proper maintenance and advancement in life, including continuance of housing arrangements which they enjoyed during the lifetimes of their late husbands. These statements are not altogether uniform in expression, and should be understood as made in each case in relation to the facts under consideration; and those facts vary widely and in truth are unique to each particular case. “ Widow takes all” is not a rule which has been or could be established by judicial decisions: the Court cannot resign the functions which it has under s 7 of the Family Provision Act 1982 in favour of rules of thumb. A rule which was once followed which practically prevented ordering provision for an adult son who was fit to work has been abandoned.

13 Observations on the claims of widows were made by Powell J in Luciano v. Rosenblum [1985] 2 NSWLR 65 at 69-70 in these terms:

‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.’


These observations were not made in the context of a competing claim or proved need by another eligible person, and were introduced by a guarded reference to a general rule and the absence of special circumstances. However they are frequently, almost universally cited in applications where provisions for widows are under consideration.

14 In Golosky v. Golosky NSWCA 5 October 1993 (unreported) the widow, second wife of the testator, was the applicant and the sons of the first marriage, the will beneficiaries whose interests were affected, were well off and did not assert financial need. The majority (Kirby P, Cripps JA concurring) ordered further provision for the widow, and Kirby P referred to Luciano v. Rosenblum briefly for comparison, but also said:

‘Matters such as these rule out an inflexible rule that every spouse or every widow is entitled, as of right and in every case, to look to a testator to provide accommodation for life. Such inflexible rules used to exist in this area, as for example the previous rule that an “able bodied son” was disentitled to a claim under the predecessor to the Act for that reason alone. That rule has now been abandoned in this State. See [ Hunter v Hunter and Ors (1987) 8 NSWLR 573 (CA) 575f] , 580f; cf Anderson v Teboneras and Anor [1990] VR 527 . So should inflexible rules about spousal provision.

15 In Hertzberg v. Hertzberg [2003] NSWCA 311 provision ordered by Acting Master Berecry for a widow, second wife of the testator, out of a large estate was confirmed by the Court of Appeal. There was no competing claim or circumstance of need of any will beneficiary. McColl JA said at [35] in the context of the claim of a widow for the matrimonial home (which in this case the claimant owns):

‘His Honour’s judgment recognised the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors. In this case the situation was exacerbated where, regrettably, the previously affectionate relationship between the appellants and the respondent had, as Acting Master Berecry found, completely broken down following the execution of the deed. Thus the situation in which the deceased may well have contemplated he had left the respondent appeared to have altered.


The statement in the first sentence of this passage should be understood in its context of a claim in a very large estate where there was no competing claim based on need.

16 In Sayer v. Sayer [1999] NSWCA 340 at [34] Sheller JA (with whom Davies AJA concurred) accorded primacy to the claim of a widow (of a second marriage) over the claim of a granddaughter who was an eligible person “in the circumstances and in accordance with prevailing community standards.” This does not in my opinion express any general principle of paramountcy.

17 In Cropley v Cropley [2002] NSWSC 349 at [56] Barrett J said:


‘When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow’s claim to maintenance out of the estate of her deceased husband is a claim which is “paramount” and “of a high order” is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring). In the former case, Sheller JA described the relativities between the claims of the widow and those of an adult grandchild applicant (Francesca) as follows:

"In my opinion, the question is whether [the grandchild] has satisfied the Court that there is, in the circumstances and in accordance with prevailing community standards ( Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 46 ), sufficient in the estate to provide for the widow’s proper maintenance and advancement in life and yet leave some amount out of which provision can be made for her.”


This was accepted as an accurate statement of the law by Palmer J in Latimore v Latimore (2003) NSWSC 364 at [59]. At [57] Barrett J proceeded to approach the applications according to the two stage approach described in Singer v Berghouse (1994) 181 CLR 201.

18 In my respectful view there is an inconsistency between an approach, in the context of competing claims, to the claims of widows as paramount, and the application to the facts and circumstance of each case of s7 and the approach established by Singer v Berghouse . Preconceptions and predispositions are likely to be the source of inadequate consideration of the process required by the Family Provision Act 1982 .

19 In the application of the test in s 7, and of the exposition thereof in Singer v. Berghouse by Mason CJ, Deane and McHugh JJ at 409-411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v. Berghouse , in full and with reference to the instant facts. Defeat of the opponents’ claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits.”

34 Interestingly Ipp J adopted this in para 1 of his judgment and also said:

“I agree with Bryson JA, for the reasons his Honour has stated, that 'it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse (1994) 181 CLR 201…’

I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."

35 Stein AJA agreed with both judges.

36 In Marshall v Carruthers [2002] NSWCA 47 the Court was concerned with a claim by a defacto partner. Hodgson had the following to say:

“63. The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respect, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
64. The Master referred to the following statement of principle which appears in Luciano v Rosenblum [1985] 2 NSWLR 65 at 69:
‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforseen contingencies.’
65. I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still fact. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

37 While acknowledging his Honour’s comments in respect of the strength of the marriage bond there are a number of factors which must be considered in this case.

38 The relationship was for a period of eight year and a half years and it was in the latter years of the parties’ life when they were free of the responsibilities of bringing up children. Importantly the plaintiff did not contribute financially to the assets in the estate.

39 The relevant estate amounts to $535,400 and if an order is made it will be reduced to $423,113.27 due to the costs incurred. For the plaintiff to be able to meet the balance of her Centrelink debt and have a house a sum of about $300,000 would have to be provided. This would leave about $123,000 for the defendant. Plainly if such provision were made the defendant would have to sell the half share of the factory and he would no longer receive the income from that property.

40 The defendant is in comfortable circumstances and has no dependants. He was provided with advancement in life by the testator advancing the cash contribution to the jointly owned property. However, the effect of the order which the plaintiff seeks will be to substantially change that position. He will have reduced income and assets and will struggle to meet repayments on the housing loan. In my view given the circumstances of this case it would be inappropriate to provide a sum sufficient for the plaintiff to receive a debt free home.

41 The plaintiff made no alternative claim in the event that her claim for a home failed. However, plainly she will need some help to acquire rented premises or, alternatively, obtain public housing. Her present expenses exceed her income and she is presently not paying rent. What rent she may have to pay is not apparent on the evidence. Subject to the next matter which I will address, a sum for contingencies including the need to rent for a period, would be appropriate.

42 The problem is that the plaintiff has a debt to Centrelink of $86,11.45. The evidence discloses that Centrelink intends to recover the debt by instalments out of her pension payments each week at a rate of 14% of her pension payment. Importantly the evidence did not address what would be the attitude of Centrelink if she received a lump sum payment from the estate. I would infer that they would require repayment of the debt from such a payment which would defeat the object of the award.

43 There are a number of decisions under the Testator’s Family Maintenance and Guardianship of Infants Act 1916, which stand for the proposition that an order should not be made which would merely have the effect of relieving the public revenue of a charge without conferring a benefit on the applicant. See Re W. S. Duff 48 SR 510 and the cases there referred to by Sugerman J. It often arises where a claimant is still bankrupt at the time of the hearing. See McLeod v Johns [1981] 1 NSWLR 347.

44 In this case the provision of funds to the plaintiff, which merely go to relieve her liability to the state, might arguably be said to be of no benefit to her.

45 The debt was incurred because she failed to notify the authorities, as she was required to do that she was living in a defacto relationship with the deceased. Although the deceased discouraged her from reporting the matter that is not an excuse. The debt has arisen because of her breach of the legislation. She merely decided to take a chance for her own gain. The defendant’s submissions on this point were as follows:

118. The Defendant further submits that the line of authority to the effect that it is inconsistent with the aims of the Family Provision Act to make an award in circumstances where the award would simply go to creditors is correct. In particular, the Defendant relies on the summary of the position contained in His Honour Associate Justice McLaughlin’s judgment in Strano v Jovsevski [2008] NSWSC 380, where His Honour said at 65 and 66:


“65 In Thomas v Jackson [2002] NSWSC 660 (26 July 2002), Master Macready (as he then was) said, at [31] that the amount which might otherwise be given to the applicant in that case should not be given to him, since any order for that amount will not be for the benefit of the Plaintiff, as it will pass to his creditors, the amount of whose claims are likely to exceed the amount of any appropriate award.

66 I am in agreement that the Courts do not order provision if it is merely to go to the applicant’s creditors in respect of unrelated matters. Such a payment would not operate as provision for the Plaintiff’s maintenance or advancement in life (see Caska v Caska [1999] NSWSC 289, 1 April 1999; Diver v Neal [2008] NSWSC 304, 7 April 2008).”

119. The Plaintiff also relies on the judgment of AsJ McLaughlin in Fletcher v Furnance [2008] NSWSC 132 at 48-50 where His Honour said:


“48 In the celebrated words of Lord Mansfield in Hollman v Johnson (1775) 1 Cowp 341 at 343; 98 ER 1120 at 1121,
The principle of public policy is this... no Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.

49 (See Everet v Williams (the Highwayman’s Case) (1725), set forth in (1893) LQR 197, cited in Burrows v Rhodes [1899] 1 QB 816 at 826 (a case arising out of the Jameson Raid); see R.E. Megarry, Miscellany-at-Law (London, 1955); see also Beattie v Reid [2002] NSWSC 1088, (2003) DFC 95-264 at 77,643-77,644, and cases there cited.)

50 I consider it to be highly offensive to public policy if the Court were to make an order the effect of which would be to award to the Plaintiff one half of the spoils of her dishonesty. I will not take into account, to the benefit of the Plaintiff or to the detriment of the Defendant, the Plaintiff’s illegal conduct in defrauding Centrelink. I propose, therefore, totally to disregard the claim of the Plaintiff that the Defendant should be ordered to pay to her one half of any amount which she might be liable to repay to Centrelink.


120. The Defendant submits that public policy is something the Court can legitimately have regard under section 9(1)(d) of the Act.

122. In particular, the Defendant submits that an award to the Plaintiff in this matter would involve the Defendant, being the only other beneficiary, sacrificing between $100,000 to $130,000 of money which he could put to good use to enable the Plaintiff to repay Centrelink before she even began to receive a benefit from any order made in her favour.

123. The Defendant submits this would be most unjust, contrary to the Act and contrary to Public Policy in circumstances where the Plaintiff’s Centrelink debt has arisen through no fault of the Defendant and through the sole fault of the Plaintiff.

124. In this regard, the Defendant submits that this case is the sort of case contemplated by the majority in Singer v Berghouse where their Honours said at paragraph 19 that:

“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 ((9) [1951] HCA 44; (1951) 82 CLR 645.),
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.”

46 The deceased had assured the plaintiff that after he died she would always have a roof over her head and perhaps he thought the legacy would enable her to have rented accommodation. As I have mentioned her estimated expenses, which do not include rent, presently exceed her pension income.

47 It seems to me that an additional award of $100,000 upon trust to be applied to supplement her expenses to rent premises or provide for other accommodation would be of assistance. It would not be her property which could be used to repay her Centrelink debt and the amount would not greatly affect her pension.

48 Such provision would be for the plaintiff’s future benefit and would not be contrary to public policy. She will still be required to pay for her misdeeds by reduction of her pension.

49 The evidence is not clear on whether the defendant holds his interest in the factory as executor or beneficiary. I have considered the matters in sections 27 and 28 of the Act and there is nothing, in my view, which would prevent the designation of the property as notional estate if that is necessary.

50 I direct the parties to bring in short minutes to reflect the terms of the trust appointment of appropriate trustees, any designation of notional estate and costs in the usual way.

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