Webber v Dimon

[2003] NSWSC 134

CITATION:	Webber v Dimon [2003] NSWSC 134
HEARING DATE(S):	25/02/03
JUDGMENT DATE:	26 February 2003
JURISDICTION:	Equity
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 24
CATCHWORDS:	Family Provision. Application by a defacto partner who was only given a right of residue in matrimonial home. No competing claims and whole estate given to applicant absolutely.
PARTIES :	Gladys Webber v Albert Sydney Dimon
FILE NUMBER(S):	SC 2448/01
COUNSEL:	Mr M. Willmott for applicant
SOLICITORS:	Turnbull Hill Lawyers for applicant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 26 FEBRUARY 2002

2448/01 – GLADYS WEBBER v ALBERT SYDNEY JELLICOE DIMON

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Albert Sydney Jellicoe Dimon who died on 8 November 1999. The deceased was survived by the plaintiff, who has been his de facto partner since 1975. He was also survived by a son Ronald.

2 The deceased made his last will on 25 February 1990 and in that he appointed his brother executor and gave his home to his wife to permit her to live in the house and have the use of it provided she paid rates and taxes and other matters and kept it in repair. The provision allowed her to have the house sold and have another house bought, to which the same provision would then apply.

3 At the moment the plaintiff wishes to live in the house or later, depending on her health, in any institution which provides care facilities. The residue of the estate was divided between five people, the deceased's nephew Michael John Cleaver, his niece Sandra Janshan, his niece, Adele Bull and two friends, David Gibson and Trevor Gibson. It is noted that his son is not a beneficiary.

4 The only evidence before me shows the assets that the estate consists of the deceased's property at 22 Greenfield Road, Empire Bay. On the valuations before me that has a valuation of some $280,000. Sale expenses for the property if it was sold would bring this down to $250,000, and the costs of $35,000 would mean that the distributable estate would be in the order of $215,000.

5 I will deal with a little of the chronology first. The plaintiff was born on 18 November 1915. The date of birth of the deceased is not known but he migrated to Australia in 1922, and the plaintiff herself migrated in 1924. They met in 1933 and, although they went out, they did not get together then and both of them married other partners. The deceased's son Ronald was born in 1951.

6 The subject property was purchased in 1969 by the deceased with the assistance of a loan from a credit union. It was in 1970 that the plaintiff and the deceased met up again after the death of their respective spouses. In 1975 they both retired, having attained the age of sixty years. They then commenced to live together as de facto spouses at the home at Empire Bay. In 1983 they operated a joint account and this was managed by the plaintiff.

7 The will was made in 1990 and in 1993 the deceased started to suffer from health problems and he was greatly assisted by the plaintiff, who looked after him throughout these problems. He ultimately died, as I have said, on 18 November 1999.

8 The summons was filed herein within time and in due course an amended summons was filed joining the five beneficiaries as defendants. There is no question of the executor taking out probate because the evidence before me shows that Mr Roy Dimon suffers from advanced Parkinson's disease and has a mild to moderate cognitive impairment and is unable to manage his affairs. There has been a grant for the purposes of the application.

9 All the five beneficiaries have been notified of the hearing today and none of them has sought to take any part in the proceedings. They have been served with copies of the affidavits. In addition, the deceased's son has also been served and he has elected to take no part in the proceedings, or to bring a claim if that is what he might have wished to do as he is an eligible person.

10 In Singer v. Berghouse (1994) 181 CLR 201 the High Court set out the approach the Court must take in matters of this nature. At p 209 it said:

"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."

11 I turn to consider the situation of the plaintiff. The plaintiff is eighty-six years of age and she has no dependents. She is still living in the home although it is now getting to the stage where it is getting a little past her. He current situation is that she is becoming increasingly frail, she has osteo arthritis and cardiac arrhythmia. Her local general practitioner supports any move for Mrs Webber to move to care or self-care accommodation.

12 Mrs Webber has no assets. She has no debts, and she has a small amount of money in the bank following payment of funeral expenses and the purchase of a new hot water service. She receives an age pension of $439.35 per fortnight. The plaintiff obviously had a long and happy association with the deceased during the period that they lived together from 1975.

13 The question of what is the appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a longstanding de facto partner has been dealt with in a number of cases.

14 In the 1970s and 1980s there are a number of decisions of single Judges of this Court where they have held that a life interest with particular attributes were appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd , Holland J 18 December 1979; Banks v Hourigan , Waddell CJ in Eq, 2 March 1989; Cameron v Hills , Needham J, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 Mason J said:-

“A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.' As has been pointed out in Elliott v Elliott that statement was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased.”

15 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Warladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J who was one of the majority in White v Barron at pp 438-440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application. By the late 1980s other Judges in this Division were taking a slightly different view. For instance, in Court v Hunt 14 September 1987, unreported, Young J said:-

'Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge.'

16 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution.

17 After talking about the evidence necessary, his Honour went on to say:-

'In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non- capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow.'

18 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky , 5 October 1998, unreported, the Court summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:-

'In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576.

(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse ( or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70.

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA.

(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant ; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop (deceased) (1987) 8 NSWLR 679 (SC); Churton v Christian & Ors (1988) 13 NSWLR 241 (CA) 252.'

19 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott , unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased.

20 In Permanent Trustee v Fraser 36 NSWLR 24 at p 47, Sheller JA had the following to say:-

'Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security.'

21 In Salmon v Blackford , 18 February 1997, the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:-

“The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.
The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty. “

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

23 In the present case I have to consider whether the plaintiff has been appropriately provided for by the life estate. The life estate itself is actually a misdescription because it is only a right of occupation and in particular it does not provide for a capital sum to enable accommodation to be purchased in self care accommodation or some other type of facility which is operated by various community bodies. To that extent it is insufficient and the question arises as to what provision ought to be made.

24 In matters under the Family Provision Act it is important to make sure that a person in the situation of the plaintiff has sufficient access to funds to look after her in her old age. The access to funds certainly for the provision of accommodation, but also to tide her over in case of medical emergencies or other matters that she may need assistance with in the coming years. There also has to, of course, in deciding the amount of any provision and whether it should be an absolute provision, the need to consider the claims of other people having a claim on the testator's bounty. In this case the obvious ones are the beneficiaries. None of those have put forward any evidence in the case. Accordingly, the Court can assume that they do not want their financial or personal situation take into account when the Court decides the matter, nor do they wish to put forward before the Court the nature of the relationship with the deceased so the Court can consider that situation.

25 There is no claim by the deceased's son and there is no evidence to suggest that he would wish to make a claim. In the circumstances it seems to me, bearing in mind the lack of claims on the deceased's bounty and the self-evident need that the plaintiff will have to obtain self-care accommodation which may not be limited to the amount which has been referred to in the evidence and the need to have a sum for contingencies, I think it is appropriate that she have the whole estate absolutely.

26 Accordingly, I order that in lieu of the provisions of the will of the deceased that the whole of the estate of the deceased pass to the plaintiff absolutely. I order that the plaintiff's costs on a party party basis be paid or retained out of the estate of the deceased. I order the exhibits be returned.

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Last Modified: 03/11/2003