White v White - [2004] NSWSC 208

No judgment structure available for this case.

CITATION: White v White [2004] NSWSC 208

HEARING DATE(S): 01/03/2004

JUDGMENT DATE:
30 March 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 55

CATCHWORDS: Family Provision. Application by daughter of first marriage. Estate left to deceased's second wife. Legacy awarded to plaintiff. Comments on the obligation of parties to place before the court their full financial circumstances.

PARTIES :
Diana Joan Hastings White v Francene Barbara White & Ors

FILE NUMBER(S): SC 2627/2002

COUNSEL:
Mr K Morrissey for plaintiff

SOLICITORS: Murwillumbah Lawyers Pty for plaintiff
Mr G Smith for defendants
Ticli Blaxland for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Tuesday 30 March 2004

2627 of 2002 DIANA JOAN HASTINGS WHITE v FRANCENE BARBARA WHITE & ORS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Denis Antony Hastings White who died on 13 November 2000 aged 80 years. The deceased was survived by his daughter, the plaintiff and his son who is not a party to the present proceedings. The first defendant is the second wife of the deceased and the second defendant is his stepdaughter.

The last will of the deceased

2 The deceased made his last will on 3 May 2000 and under that will he appointed the plaintiff and the defendants as executors. In the event that the first defendant, his wife, survived him for one month he gave her the whole of his estate. This in fact occurred. Under his default provisions in case his wife had not survived him for one month he left the whole of his estate to his two children from his first marriage and his stepdaughter, the second defendant in equal shares.

The estate of the deceased

3 The deceased held a number of joint assets including his home which all passed to his second wife by survivorship. He also held in his name substantial shareholdings, which at the date of death were valued at $805,048.20. The defendants have failed to place before the court any information as to the present value of the estate. Obviously there would have been substantial income received over the period between the date of death and the hearing of these proceedings. The parties are agreed that the value of the shareholding at current valuations is $799,769.00. The deceased also owned a Mazda car which was transferred to the first defendant, his second wife, who also received a number of distributions of income. Up to December 2002 the amount of income distributed to the first defendant was $30,266.97 and it is also apparent that administration expenses to date have also been paid presumably out of this income.

4 The defendants’ costs in respect of the proceedings, which have been incurred by their present solicitors, are estimated at $30,400.00. There is an outstanding bill from the defendants’ earlier solicitors of some $31,000.00. However, this amount is disputed. The plaintiff’s costs were estimated at $47,000.00. In the event that an award is made, the amount of costs to come out of the estate would be $108,400.00 subject to some reduction in the former solicitor’s costs.

5 The deceased’s son, Antony, made a claim against the estate in the sum of $130,000.00 including costs. Interim orders have been made in respect of that settlement pending the hearing of these proceedings. In the event that the court approves that settlement and makes the appropriate orders, the balance of the estate is likely to be $561,600.00 less some further costs for the realisation and distribution of the estate.

6 In 1952 the plaintiff commenced boarding at New England Girls School at Armidale. She completed her education there in 1960 after which she worked at home for a year. In 1961 the plaintiff moved to Sydney to live with her maternal grandmother so she could complete an art and design course in Sydney. Thereafter she spent five years employed by David Jones working in their art department. In 1967 or 1968 the plaintiff left her employment at David Jones and travelled overseas for two years on a working holiday. On her return she commenced employment with Hi-Craft Carpets in Sydney as a colour consultant and remained there for approximately seven years.

7 As I have mentioned it was on 1 March 1977 that the deceased’s first wife, Isobel died. For some time Diana had been travelling in the Phillipines and she returned there after her mother’s death. In 1978 the deceased and the first defendant started to go out together. The first defendant had separated from her first husband in 1973. On 19 November 1978 the deceased and the first defendant were married and commenced to live on the deceased’s property “Whakatane”. The deceased had operated this property for many years. By 1980 he was in serious financial trouble as a result of the drought and pressure from the Rural Bank. The deceased endeavoured to save the property by droving his stock for over a year with the assistance of the first defendant. However, in 1981 the deceased sold the property.

8 In 1979, Diana who had moved to Brisbane after returning from overseas, purchased a parcel of land at 41 Donatello Street, Figtree Pocket, Brisbane, a suburban allotment and commenced to build a home on it.

9 In 1981 after the sale of Whakatane the deceased and first defendant purchased a property called “The Haven” near Tamworth for $89,483.00. This was held by the deceased until the property was sold in 1991 when he and first defendant moved to Bellingen and purchased a house at 5 Dillon Close, Bellingen.

10 In October 1984 while she was driving to Brisbane the plaintiff called in to see the deceased. The next occasion she saw him was when the deceased and his wife were in Brisbane in 1998. They called her and they had dinner together.

11 The deceased made his last will on 3 May 2000 and as I have mentioned he died on 13 November 2000. Probate was duly granted and these proceedings were commenced within time.

The plaintiff’s eligibility

12 The plaintiff being a daughter of the deceased is an eligible person as of course is her brother in the other proceedings.

13 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209-210 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 for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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

14 The plaintiff is 60 years of age, she is single and has no dependents. She has been single for some years and does not anticipate any relationship in the future. She has a birth deformity that affects both arms and she only has part of one hand. Notwithstanding this deformity, she occupies a position as a clerical assistant at the Mater Hospital at Brisbane and receives a salary of $33,666.00 per year. At this stage she hopes to continue working until she is 65 years of age. Her net salary per week is $654.49 and she has outgoings, which have been reduced from those shown in her affidavit as she has now repaid the mortgage on her home. Her weekly outgoings are in the order of $515.00 per week. She is able to meet her expenses and indeed she has a surplus, which she is contributing to her superannuation.

15 The plaintiff owns her property at 41 Donatello Street, Fig Tree Pocket, Queensland. The property is worth $200,000.00 and is unencumbered. She also has a Mitsubishi Lancer Station Wagon which is insured for $18,000.00 although it is worth somewhat less. Her shares in Westpac Bank are worth approximately $10,000.00. She has bank accounts of about $12,000.00

16 The plaintiff is a member of a superannuation fund and her interest at the moment is valued at $161,761.66. By the time she retires it is likely to yield an amount of $214,687.00 which she can take as a lump sum or as an allocated pension. If she takes a pension it would be in an amount of between $15,000.00 and $20,000.00 per annum which would last for some ten to fifteen years.

17 The plaintiff has made her own way in life without any help in a financial way from her parents. At one stage she asked her father for assistance but he was unable to help her because of his own financial difficulties. She has not contributed to the build up of the estate of the deceased in any financial way. Her contributions by working on the property were only for a year after she had left school.

18 An important matter is the relationship that existed between the plaintiff and the deceased. It appears to have been a normal relationship up until the time of the death of the plaintiff’s mother in 1977. Although the plaintiff lived in Sydney she was able to keep in contact with her parents and, indeed, frequently visited her mother when she was in hospital for treatment for cancer. The deceased remarried in 1978 somewhat to the surprise of the plaintiff who was happy for him to do so. However, difficulties soon arose and over the years the plaintiff only saw the deceased on a few occasions. The plaintiff sought to keep in contact with her father by mail but several things occurred which led to an estrangement. The points of friction appear to have been the spreading of some rumours about the deceased’s second wife wearing the deceased’s first wife’s jewellery and an occasion when the plaintiff picked up two duffle bags from home which contained a number of her possessions. According to the deceased he thought these bags contained silver which belonged to his first wife. There was also an incident when the first defendant, the deceased’s second wife, kept from the children the fact that the deceased had been in hospital and was being treated for a serious heart condition. Although she said she did this on the advice of the doctor it led to a sharp exchange between her and the plaintiff. The plaintiff immediately apologised to her father and offered to apologise to his wife but she would not speak to the plaintiff. Thereafter the deceased refused to speak to the plaintiff and would not let her visit him at the property at Bellingen.

19 As I have recounted in the chronology, the plaintiff only saw the deceased two or three times in the last sixteen years of his life. One occasion was in 1984 and the other 1989 when the deceased was in Brisbane. On this occasion the meeting was cordial and they seemed to get on well together. The default provision in the deceased’s will probably reflects the fact that there was a reconciliation in the later years of the deceased’s life.

20 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.”

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

…..

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

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

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

22 Meagher JA (NSWLR at 570) agreed with Priestley JA.

23 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal Unreported 6 June 1989 at 4 (an adult daughter case) that the duty arose to make provision as established in that case as follows:

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

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

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

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal, 5 December 1984, unreported) and Gorton v Parks (1989) 17 NSWLR 1.

Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

26 In Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

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

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

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

28 In Gorton v Parks at 10, Bryson J sought to distinguish the Scales case. He said:

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

29 In any event Bryson J distinguished the Scales case (at 11) on the basis that on the facts before him, the plaintiffs:

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

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

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this Court, in the Court of Appeal and in the High Court. The majority of the court said at 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to moral duty or moral obligation may well be understood as amounting to a gloss on the statutory language. They then say, the determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

31 Young J also observed:

“In Fraser’s case, Kirby P at 29 said that ‘I do not consider that it would be safe for this Court, or other courts in this State, to disregard the obiter dicta in Singer v Berghouse concerning ‘moral duty’. However, his Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (at 27).”

Handley, JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Knott (1994) 68 ALJR 509, the High Court was itself using the words ‘moral claim’ in decisions under this Act.

Sheller, JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the Court. He said, with reference to decisions of Murphy, J at 42 the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. … The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ [In re Allardice (1910) 29 NZLR 959, 970] will not alone suffice to empower the court to make an order.”

32 In Walker v Walker, Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.

The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

33 It seems to me that the formulation of His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters.

34 In these circumstances it is necessary to look at the history of the relationship. The plaintiff endeavoured to maintain contact with the deceased after her mother’s death. No conclusion can be drawn on the evidence about the rumours concerning the wearing of the jewellery. The plaintiff denies that she took any of her mother’s things in the duffel bags which she picked up some time after her mother’s death. The reported conversations of the deceased show that there was some of her mother’s silver in the bags prior to them being picked up. The conversations suggest that there was no discussion about the bag’s contents and they were not opened when the plaintiff picked them up. In these circumstances I accept the plaintiff’s evidence.

35 The later incident (which was the altercation between the plaintiff and the first defendant) seems to have been regarded more seriously by the deceased. The circumstances and in particular the offer of an apology makes it hard to understand why the deceased took the extreme measure of disallowing his daughter to visit him.

36 In my view the plaintiff’s conduct was not such that they she should not receive any provision from the deceased’s estate if she is otherwise entitled to such provision. She did endeavour to maintain contact but the deceased rebuffed, her probably wrongly. However, one factor that has to be noted is that there was in fact very little contact over the later years, no doubt as a result of the deceased’s perceptions. This was an unfortunate consequence and has to be borne in mind when assessing the extent of the provision to be made for the plaintiff.

37 Having considered the position of the plaintiff, it is necessary to consider the situation in life of others who have claims on the bounty of the deceased. In the present case there is the agreement for the settlement of the plaintiff’s brother, Antony’s claim in a total sum of $130,000.00. There is also the situation of the first defendant, the deceased’s widow. I turn to consider her situation.

38 The first defendant is seventy years of age, she is single and has no dependents. Her children have grown up and have made their own way in life. Although the first defendant would like to assist them, given their situation in life and the fact that they are adults that is not a consideration in this matter. The first defendant has some problems with her health (mainly to do with her knees) and it is likely she will have to have an operation on her left knee.

39 So far as her financial situation is concerned, the first defendant’s evidence was extremely unsatisfactory. She swore an affidavit in March 2003 and did not update her financial situation at the hearing. Accordingly, the matter was left for cross-examination to demonstrate that there had been substantial changes and in the witness box the first defendant could give no explanation as to her current financial situation.

40 The parties have an obligation to place before the court their financial situation. This court has frequently referred to what was said by Lord Brandon for the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424 at 437-438:

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

41 These comments are appropriate to these proceedings. A similar approach has been adopted in many Family Provision Act cases. See the decision of Young J in Stewart v McDougall (Unreported 19 November 1987.)

42 It can also be appropriate to use the principle in Jones v Dunkel (1959) 101 CLR 298 to draw inferences that any topic on which a party has failed to call evidence is one in which that party’s case would not have been assisted by the evidence if it had been called. Where the court has to make findings as to the value of an item that a party has not adequately established, an application of this principle allows the court to find the value is as high a value as possible consistent with the description of the asset. See Armory v Delamirie (Chimney Sweeper’s case) (1722) 1 Stra 505.

43 Bearing these matters in mind the first defendant’s situation seems to be as follows.

44 The first defendant owns an unencumbered house at Bellingen valued at $325,000.00. She has a car, a second hand Mercedes that she recently purchased for $25,000.00. Her household furniture and effects are estimated at $20,000.00. She has shareholdings, which she estimated in March 2003 had a value of $320,000.00. One of those shareholdings, namely, the shares in Principal Office Trust Units then valued at just under $60,000.00 were sold along with some other shares which she did not then disclose. For those shares she received a sum of $86,000.00 which was placed in a bank account in August 2003. She was not able to produce any current statements for that bank account and could not assist the court as to how much she had in that bank account. She also appears to have sold some 46,496 BT units. The only explanation as to the use of the funds was the purchase of her car for $20,000.00. In these circumstances and bearing in mind the income she has received, I would infer that she has funds in the order of $80,000.00 available to her as well as her shares worth $260,000.00 in March 2003.

45 So far as income is concerned the first defendant receives a Veterans Affairs pension (which is not means tested) of about $480.00 net a fortnight. She says that her total income for the year ended 30 June 2002 was $43,000.00. No income tax returns have been produced to accurately demonstrate her income. She estimated her weekly expenses at $588.00 an amount which would be more than adequately covered by her income.

46 Although it is clear that the first defendant has sufficient income to support herself there are a number of things she will have to do to enable her to continue to live in her present home. For example, she will need to spend some $13,000.00 on painting the Bellingen property. She has a loan of $4,000.00 with AGL which should be repaid. She will need a sum of $20,000.00 to cover her hip replacement. She also needs to spend another $16,000.00 on white ant eradication at her property.

47 There is no suggestion that the first defendant contributed to the estate other than to sell a Mercedes car at one stage so they could buy a truck. She clearly supported the deceased well over the 23 years they were together and it was a happy marriage.

48 Next, is necessary to review how the plaintiff contends she has been left without adequate and proper provision for her maintenance, education and advancement in life.

49 There are a number of matters advanced by the plaintiff which are straightforward. They are appropriate matters to consider under this heading. The first is the costs associated with dental work she needs of $13,047.00. Although there was cross examination to suggest that she had postponed this work, I accept that it is a need that the plaintiff has, having regard to the evidence of the dentist. There is some maintenance to her property which includes work to the bathroom and painting the exterior of her house which will cost $8,701.00. The plaintiff will also have to replace her car which is three years old and after making allowance for the early receipt of the funds she estimates this will cost $23,000.00. I accept this amount.

50 The plaintiff is not in a medical benefit fund and has ascertained the cost of medical benefit contributions into the future and claims an amount for this. However, it is apparent that the plaintiff has sufficient income to cover this expense and accordingly I would not consider it an appropriate item. The plaintiff also referred to the need to relocate to northern New South Wales. She had in mind Murwillumbah where she has a number of friends. She did not, however, lead any admissible evidence as to the cost of such properties. There is some evidence that the cost of a two bedroom unit in the Port Macquarie and Coffs Harbour area would be between $225,000.00 and $250,000.00. This is a modest increase over the price or value of the plaintiff’s present home but given the plaintiff’s intentions it is probably irrelevant. There are, of course, other costs involved in the move but in my view this is something which given the lack of evidence I will not consider.

51 The plaintiff has a number of other needs as a result of her physical disabilities. There is evidence from Dr Stephen Buckley, a medical practitioner who specialises in rehabilitation medicine. Dr Buckley has examined the plaintiff and has come to conclusions about her needs. There was no cross-examination of him and he summarised his conclusions in these terms:

52 The plaintiff summarised the necessary items in the following terms:

Future physiotherapy costs @ $330 per year from age of 65

@ $6.35 p/w x 896.9 (multiply.3% 23.68 years) $5,695.32

Handyman assistance @ $75 p/w from age 65

Personal care @ $350 p/w from age 70 $221,200.00

67,267.50

$365,600.89

53 There was no objection to these figures (which were given in the plaintiff’s affidavit) and it appears that at least the first three and the last one have been indexed to reflect the present value using the 3 percent tables. The figure for personal care has not been indexed and appears to cover approximately twelve years’ care from the age of 70 at $350.00 per week. Notwithstanding that no objection was taken to this item and there was no submission made in respect of it, to receive this amount now is quite inappropriate and should be discounted. It is also apparent that this cost may disappear (as will some of the other costs) when and if the plaintiff elects to take up nursing home accommodation. There is at least a chance that the plaintiff will, like a large number of the present population, have to move into such accommodation. In her case she has no immediate family to support her.

54 In summary, although the items are appropriate, the extent of them are subject to some doubt. The plaintiff will receive her superannuation when she retires and this will be a reasonable sum if she takes a lump sum. The evidence did not address the plaintiff’s income situation for retirement other than to note that she could receive an allocated pension of $15,000.00 to $20,000.00 per annum rather than a lump sum for ten to fifteen years. The investment of her superannuation will provided an income of $12,000 per annum. Without evidence it is not possible to work out the impact of the receipt of funds which the plaintiff will receive now or on her retirement upon her entitlement to an Aged Pension.

55 There is no doubt that the plaintiff has some immediate needs totalling $44,748.00 and that she will have needs in the future as a result of her disabilities. At the present time the first defendant is well provided for and even with some amount awarded to the deceased’s son and the plaintiff, she will still receive funds which will secure her position. Taking into account the evidence in the case and the circumstances to which I have referred to in this judgment, I think a legacy in favour of the plaintiff for $200,000.00 is appropriate.

56 I direct the parties to bring in short minutes for this matter and the other proceedings.

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Last Modified: 04/01/2004

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Citations

White v White [2004] NSWSC 208

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Cases Citing This Decision

6

Separovich v Ferrao [2011] NSWCA 180

Paino v Paino [2008] NSWCA 276

Hayes v Marquis [2008] NSWCA 10

Cases Cited

8

Statutory Material Cited

0

Singer v Berghouse [1994] HCA 40

Skinner v Frappell [2008] NSWCA 296

CITATION:	White v White [2004] NSWSC 208
HEARING DATE(S):	01/03/2004
JUDGMENT DATE:	30 March 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 55
CATCHWORDS:	Family Provision. Application by daughter of first marriage. Estate left to deceased's second wife. Legacy awarded to plaintiff. Comments on the obligation of parties to place before the court their full financial circumstances.
PARTIES :	Diana Joan Hastings White v Francene Barbara White & Ors
FILE NUMBER(S):	SC 2627/2002
COUNSEL:	Mr K Morrissey for plaintiff
SOLICITORS:	Murwillumbah Lawyers Pty for plaintiff Mr G Smith for defendants Ticli Blaxland for defendants