Wiltshire v Wiltshire and 2 Ors

[2005] NSWSC 458

CITATION:	Wiltshire v Wiltshire & 2 Ors [2005] NSWSC 458
HEARING DATE(S):	09/05/2005
JUDGMENT DATE :	9 May 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	paragraph 25

CATCHWORDS:	Family provision - application by widow of deceased - long marriage - life estate determined - legacy of greater part of estate provided to the plaintiff - no matter of principle.
LEGISLATION CITED:	Family Provision Act Wills, Probate and Administration Act
CASES CITED:	Golosky & Anor v Golosky (C of A) (unreported) 5 October 1993 Singer v Berghouse (1994) 181 CLR 201
PARTIES:	Gladys Ellen Wiltshire v John Joseph Wiltshire Patrick Daniel Wiltshire Kathryn Ann Wels as executors for the Estate of the late John David Wiltshire
FILE NUMBER(S):	SC 1393/05
COUNSEL:	C.A.Vindin (Pl) R. Stanton (D)
SOLICITORS:	Bondfield Riley Solicitors & Notary (Pl) Parker & Kissane Solicitors & Attorneys (D)

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

MONDAY 9 MAY 2005

1393/05 - GLADYS ELLEN WILTSHIRE v JOHN JOSEPH WILTSHIRE & ORS

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late John David Wiltshire, who died on 1 October 2004. The deceased was survived by his 86 year old widow and his eight children. The deceased’s last will was made on 1 October 1986. Under that will he left what could be described as a right of residence in favour of his widow in respect of the home on the farm property. If she ever decided to live elsewhere, then that right of residence would cease.

2 The residue of the estate was to be distributed between his children.

Assets in the Estate

3 The main asset in the estate is the farm property that is outside Casino. That property has a value of $630,000. There appears to be other assets of some $9,000. There will be the expense of administering the estate and the costs of the plaintiff have been estimated at something less than $25,000, and those of the defendants, less than $15,000. There is already, apparently, a proposal for a sale of the farm property to the son of the first defendant. If that can happen that would no doubt be to the advantage of the estate. It will save costs. The property is, in fact, on the evidence before me, valued at $630,000.

4 I will just briefly refer to some family history. The plaintiff was born in Casino on 26 June 1919. She had a fairly typical country upbringing. She attended public school until she was thirteen years of age, and then helped on the family farm until she left home at seventeen years of age, and worked as a farm hand. That was her first paid employment.

5 She then came back to work with her parents and worked unpaid for them for some two years. She then received some other employment and she married the deceased on 23 October 1940. They had their first child in April 1941. They rented a farm in 1943 and lived there with their children until 1945, when they moved to the present property, which they acquired ultimately in 1946.

6 The property was purchased for some 4,000 pounds and, no doubt, was a struggle. It was only a small farm of 90 acres and it required a lot of work. The deceased and the plaintiff farmed that in partnership until about 1977, when the deceased, who suffered from glaucoma, became blind. They then both still continued to live on the farm and from time to time they were assisted also by the first defendant, the deceased’s son.

7 In 1985 the plaintiff was first diagnosed with breast cancer and I will refer to her difficulties in that respect a little later. It was on 1 October 1986 that the deceased made his will to which I have referred. On 29 August 1999 the deceased was admitted to Casino Hospital. At that stage the plaintiff came and moved into town to be near him, and now lives in rented accommodation. In October 1999 the deceased was transferred to the Cedars Nursing Home in Casino, and it was apparently at this time that the plaintiff rented a house in Casino.

8 The deceased died, as I have mentioned, on 1 October 2004, and probate was granted on 8 February 2005. The summons was issued on the same day and expedition granted and the matter brought on because of the plaintiff’s ill health.

9 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out a 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.”

10 I turn to consider the plaintiff’s situation in life. She is, as I have mentioned 86 years of age. She is single and has no dependent children. Her present life expectancy is 6.2 years. Her assets are absolutely minimal. She has personal chattels and personal effects which are not valued. She has an amount of $8,000 in a building society and she has $10,000 in a diocesan investment account. Her health is now not good.

11 There is in evidence a report of her treating doctor, Dr Castagna, made on 16 March 2005. He mentions that in 1985 she had cancer of her right breast. Fortunately, there was no known lymphatic gland spread. She had a very malignant melanoma removed from the right side of her nose in November 2002. She then had cancer of the left breast and she had surgery in October 2003. Unfortunately, there was found to be lymphatic node involvement, and hence the spread of her disease. She has had a melanoma of the right lower eyelid and the excision apparently was successful. The doctor concluded his review of her condition in these terms:

“Because of the spread of her left breast cancer and probable spread of her most recent melanoma, it is highly probable that the manifestation of secondary spread from these cancers would become apparent in the very near future.”

12 In addition, there was a very recent report from Dr Castagna of 5 May, which was merely to refer to the fact that she was extremely debilitated from her cardiac condition, and her anxiety state and, thus, was unable to travel to Sydney or in the future.

13 It is also necessary, of course, to have regard to any claims on the bounty of the deceased by any other person. In the present matter the only people would be the eight children of the deceased.

14 In the plaintiff’s statement she refers to their addresses and their marital status. They all seem to be married and were born, as I have earlier indicated, commencing in 1941 through to 1952. Most of them have three to four children. I think the youngest have five, and two children have two children. There are no details of their financial situation or their involvement with the deceased, other than in respect of the eldest, who is apparently retired.

15 The Court can really assume in this case, therefore, that the beneficiaries do not wish those matters to be taken into account in considering the matter, and, in any event, the competition in a claim such as this is very minimal.

16 It is necessary to see how the plaintiff has been left without adequate and proper provision for her maintenance, education and advancement in life. In the present case the claim is based upon the provisions which are normally made for widows. These provisions have been set out in many cases, and recently the President of the Court of Appeal in Golosky & Anor v Golosky (unreported) (5 October 1993) summarised them in these 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 and 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) NSWJAB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail 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 (Supreme Court); Christian and Ors (1988) 13 NSWLR 241 (CA), 252.

17 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to 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.”

18 In this case we have a marriage which is of 64 years duration. The plaintiff clearly worked hard on the farm alongside the deceased, and helped, no doubt, pay it off and supported the deceased. She also clearly looked after the deceased in his old age. He became blind in 1977 as a result of his glaucoma and he would have needed care.

19 In submissions it was suggested that some form of life estate would be appropriate. I have already referred in the quote from Golosky & Anor v Golosky (supra) how that is normally considered inappropriate. In this case there is evidence indicating that hostel accommodation is available in the Casino area, and the contribution to this will no doubt depend and vary from circumstance to circumstance. I think it is reasonable to infer that the relevant contribution, if it is available, would no doubt assist in obtaining that accommodation.

20 There is also evidence before me of what it would cost to obtain a house for the plaintiff in town in Casino, in the style of the house in which she used to live on the farm. The evidence shows that a house of this nature would be available for some $295,000. That, of course, is not the only cost that would be involved. There would be the stamp duty on the purchase, which is not inconsiderable, and the costs of any legal advice for the purchase. It seems that the plaintiff has little furniture. No doubt she might need to furnish the house.

21 The plaintiff receives the pension and finds it difficult to manage on that. If she had her own home and some sum behind her, no doubt a lot of her anxiety would be relieved.

22 On the present rules as to pension, if she had her own house the plaintiff would be able to receive up to $153,000 without any effect on her pension. The plaintiff is anxious to achieve her own independence. She has gone to the trouble of swearing an affidavit saying that she has suffered great hurt from the discussions that have been going on with some of her children. She says that some of her children have avoided her, and she wants to manage her own financial situation and make her own decisions. That is a very natural thing. She is now in ill health and for her to be able to be relieved from any financial worry, is probably a very important thing for her at this stage in her life.

23 In a case such as this, were it not for the ill health of the plaintiff, I would have absolutely no hesitation in giving the plaintiff the whole of the estate. She needs some money to provide a home. She needs money to assist her in the various things that might occur, additional medical expenses, treatment, and she might need ready money if she wanted to change her accommodation to a nursing home.

24 However, the one thing that makes this case somewhat different from the usual is the medical evidence, which shows that, in fact, the plaintiff has a very limited life expectancy. It would seem that plaintiff’s needs are for a house to be comfortable, to have sufficient money behind her so that she does not have to worry.

25 In the circumstances I think an appropriate sum for her to receive by way of legacy out of the estate in lieu of the provision which has been made for her, is that she receive a legacy out of the estate of the deceased for $485,000.

26 Accordingly, the orders that I make are that in lieu of the provision for the plaintiff in paragraph 4 of the will of the deceased, the plaintiff receive a legacy of $485,000.

27 I order that interest will run on the legacy at the rate provided for under the Wills, Probate and Administration Act if it is not paid within three months of today’s date and on and from that date.

28 The plaintiff’s costs on a party and party basis and the defendants on an indemnity basis are to be paid or retained out of the estate of the deceased.

29 I order the exhibits be returned.

**********