Cameron v Vial [2009] NSWSC 79 (2 March 2009)

Last Updated: 5 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Cameron v Vial [2009] NSWSC 79


JURISDICTION:
Equity Division

FILE NUMBER(S):
5016/2007

HEARING DATE(S):
23/02/09, 24/02/09

JUDGMENT DATE:
2 March 2009

EX TEMPORE DATE:
2 March 2009

PARTIES:
Gladys Cameron v Colin Vial (Estate of the late Raymond Reginald Vial)

JUDGMENT OF:
Macready AsJ

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr R Quickenden for plaintiff
Miss P Gormley for defendant

SOLICITORS:
Elliott Tuthill for plaintiff
CBD Law for defendant


CATCHWORDS:
Family Provision. Application under Family Provision Act by a de facto who had lived with deceased for 30 years. Consideration of appropriate provision. Bequest of house ordered in lieu of legacy of $10,000.

LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
Paragraph 54



JUDGMENT:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 2 MARCH 2009

5016/07 - GLADYS JEAN CAMERON v COLIN JOHN VIAL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Raymond Reginald Vial, who died on 18 June 2007 aged 77 years. The deceased was survived by the plaintiff who was living with the deceased as his de facto partner at the date of death. He was also survived by his four children who are aged between 44 and 56.

Last will of the deceased

2 Under the deceased's will dated 1 June 2007 the plaintiff received a legacy of $10,000 and the deceased left the residue of his estate to his four children, one of whom he appointed executor.

Estate of the deceased

3 The deceased's estate now consists of the following:

House at Narrawallee $320,000.00

Interest in Queensland land $250.00

Shares $5,094.00

Cash in estate after administration costs $132,919.00

TOTAL $458,263.00
4 There are also costs which have been estimated as follows:

Plaintiff $49,743.00

Unpaid defendant’s costs $24,229.00

TOTAL $73,972.00

5 If an order were made for payment of these costs there will be the house and about $64,000 in cash and shares left in the estate. This is before payment of the plaintiff's legacy of $10,000.

Family history

6 The deceased was born in 1930 and the plaintiff in November 1933. The deceased had four children, Colin Vial born January 1953, Justin Vial born April 1960, Kerry Standish born September 1962 and Diana Ralph born June 1964. The deceased and his first wife separated in 1970. Apparently this was the result of some drinking by the deceased. The deceased and his wife made an arrangement some time after this for the deceased's wife not to make a claim by way of property settlement upon the deceased promising that he would leave the land, which they both jointly owned at Narrawallee and which at that stage did not have a house on, to his children.

7 In 1975 the plaintiff and the deceased started their relationship. At that stage the plaintiff was about 42 years and the deceased 45 years. Between 1975 and 1978 there were trips down to the land at Narrawallee with the deceased, the plaintiff and her children. By 1978, according to the plaintiff, the deceased commenced residing with her on a full-time basis at her housing commission home. At that stage the deceased was working full time as a water meter reader for the water board and the plaintiff was a cleaner at a local hospital.

8 In 1980 the transfer from the deceased's wife to the deceased of the land at Narrawallee was registered and in 1982 the deceased built a kit home on the land. That was completed in a few years and in 1985 the deceased retired. He was aged 55 and the plaintiff was still working. He used his superannuation to pay out the mortgage which had been taken out to build a house on the Narrawallee land. He then moved down there to live and they would be together on the weekends. Frequently the deceased would come up and pick up the plaintiff and go down to Narrawallee for the weekend before returning her on the Monday for work. In 1987 or 1988 the plaintiff herself retired and she moved down to Narrawallee and they resided there as a couple from that time. Over the years up until 2007 they would often come up to see the deceased's mother at Camperdown.

9 In his will made on 17 December 1998 the deceased left all his estate to his children in contrast to the will to which I have earlier referred.

10 The deceased's mother died on 21 January 2007 and the deceased inherited a 1/5 share in her estate. Shortly afterwards his health started to deteriorate and he was looked after by the plaintiff. In May he came up to Royal Prince of hospital and stayed with his daughter Diana and they lived for a while at his mother's house while he went to hospital and had treatment.

11 The will to which I have referred was made on 1 June 2007 and the deceased died on 18 June 2007. Probate was granted and the application was made within time.

Eligibility

12 It was conceded that the plaintiff was the de facto partner of the deceased at the date of death, therefore, she is an eligible person. One of the questions in the case is how long was there a de facto relationship. There seem to be three separate periods involved. The first was from 1978 to 1985 when, according to the plaintiff, they were living together at her housing commission flat at Camperdown. Then there was the period from 1985 to 1987 when the deceased was living at Narrawallee and the plaintiff still living and working in Sydney. Then the period from 1988 up to the date of death when they plainly lived together at Narrawallee. The only one that is in real dispute is in fact the first period.

13 The plaintiff claimed, as I have mentioned, that their romantic relationship commenced in 1975 and by 1978 the deceased was living in her home. What is to be noticed is after the relationship with his wife finished in 1970 the deceased went to live with his mother and his son, Colin, who lived with him there. The other children were living with their mother and saw their father on fortnightly access.

14 Colin married and left home in 1974. There was then no need for the deceased to stay with his mother to look after Colin. The other children were still quite young. I am satisfied on the evidence that the plaintiff and the deceased did live together at the plaintiff's house from 1978 and continued to live together except for the two years after the deceased retired in 1985. Even in those two years they still spent weekends together at Narrawallee.

15 The evidence is plain that even in the earlier period they shared a room and a bed and the evidence is that there was a sexual relationship. For all practical purposes it was in fact a relationship of about 29 years.

16 In applications under the Family Provision Act the High Court in Singer v Berghouse (1984) 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 we 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

17 The plaintiff is 75 years old, single with no dependants. All her four children are grown up, aged between 45 and 50 years, and our self-supporting. She lives alone in the deceased's home at Narrawallee. Her assets are a bank account of $2500 and a debt owed by her son of $2500. She is in good health apart from some problems with her foot which she expects to get better. She has a life expectancy of 14 years.

18 She did not contribute to the assets in the estate. The home was built by the deceased on the Narrawallee land and he paid it off out of his retirement funds. The plaintiff had always, up until she retired, lived with her children in a rent controlled property. She had no assets of substance to contribute to the relationship apart from some furniture. The remaining cash in the estate comes from the deceased's 1/5 share in his mother's estate.

19 The substantial dispute in this case concerns the nature and quality of the relationship which the plaintiff had with the deceased. It is plain that the plaintiff has a serious alcohol problem. It was evident throughout the relationship and the evidence is replete with examples of her passing out or falling flat on her face because of her state of intoxication. The problem was not confined to the plaintiff. The deceased’s wife left him because of his drinking and his children conceded that he did drink to excess. The problem seems to have escalated after they were both retired which was in 1987. The plaintiff would start drinking in the morning and the deceased by lunchtime. They frequented the local bowling club on a daily basis. Both of them did also play bowls several days a week.

20 The real problems in the relationship seemed to have emerged in the last six years. In this period there is abundant evidence of the deceased wanting to end the relationship but never actually doing it. There was also evidence of many arguments between them. Notwithstanding this they still seemed to go to the club together. The plaintiff still cooked for the deceased’s Sunday bowls group.

21 It seems that over the last six years the relationship was not a happy one mainly due to the excessive drinking particularly of the plaintiff. However it did continue until the date of death. The plaintiff cooked for the deceased and did the washing. The home was untidy by some people's standards and there was a debate in the evidence as to whether it was clean. This does not seem to have been the subject of complaint by the deceased.

22 It is also necessary to have regard to the situation in life of others having a claim on the bounty of the deceased. These are his four children.

Colin Vial

23 Colin Vial is aged 56 and is a sheet metal worker. He divorced in 1995 and has two adult children. The only asset he has is a fund from a personal injury claim worth $77,908, and a car valued at $7,000. Of his weekly net income of $956 he spends $886 leaving a modest $100 for holidays, emergencies and unexpected expenses. He lives with his new partner to whom he pays rent for occupying her home. He, like his siblings, had a good relationship with the deceased and kept up contact over the years.

Justin Vial

24 Justin Vial is aged 49, married with two young children. Their joint income is about $1120 per week half of which goes on the mortgage. They purchased a modest home at Bundeena with a mortgage of $25,000. They have other debts of $16,000. Because the home is on the water the value has increased dramatically and is worth some $900,000. Their cars are valued at $12,000 and he has superannuation of $255,000.

Kerry Ann Standish

25 Kerry Ann Standish aged 47 is a stock controller and lives in modest financial circumstances. She and her partner own a house which needs demolishing or serious renovations but they do not have any spare money. They have virtually no equity in the property. She does not have children nor does she plan to have any. She has superannuation of $140,000.

Diana Ralph

26 Diana Ralph aged 45 is a customer service officer. She is married and has no children but hopes to have some with the help of IVF. Their joint weekly income is $1661 of which over $1000 is spent on the mortgage. They do not have any money left at the end of the week. They own a house and a block of land on the south coast valued in total at about $600,000, with a mortgage of $547,800. They have bank accounts of $21,851 which is offset by credit cards of $4378. The two cars are worth a total of about $11,000. She has superannuation of about $77,000.

Discussion

27 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. She asks to be given the fee simple of the house in which she has lived with the deceased for the last 19 years of their life.

28 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 de facto spouses.

29 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".

30 There have recently been reminders about the limited use of such formulations. In Marshall v Carruthers NSWCA 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.”

31 Palmer JA concurred in these sentiments.

32 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 s.7 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.”

33 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."

34 Stein AJA agreed with both judges.

35 In Marshal 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 particulary 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.”

36 Whilst acknowledging his Honours comments in respect of the strength of the strength of the marriage bond, there are a number of factors which are of importance in this case.

37 The first of these factors is the length of the relationship. Effectively it was for 30 years. Although they did not have children themselves, the plaintiff's children were living with them for a period at the commencement of the relationship.

38 It is plain that it was the deceased who contributed the land and construction costs for the house at Narrawallee.

39 The relationship probably suited both of them for the first 23 years and it only became unhappy in the last six to seven years. This was because of the plaintiff's increase in drinking. However it did continue until the date of death.

40 It is plain from what the deceased said that he felt morally obliged to leave his home to his children. The promise he made to his wife let him have the whole of the land. However, the deceased did not give adequate consideration to what provision he should make for the plaintiff. The legacy of $10,000 is patently insufficient.

41 The plaintiff is 75 years of age and has a life expectancy on the tables of 14 years. There was no medical evidence to suggest that her drinking has shortened her life expectancy. The plaintiff has four children and it would be expected they would inherit her estate on her death.

42 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.

43 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.”

44 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.'

45 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.

46 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.'

47 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky , 5 October 1993, 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.'

48 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.

49 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.'

50 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. “

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

52 The plaintiff needs somewhere to live and the defendant's response has been to tender evidence showing that houses can be rented in the area for a sum in the order of $210 per week. The defendant, and indeed the plaintiff, did not tender evidence to suggest that a unit could be purchased at some considerably smaller cost in the local area.

53 Given her life expectancy and her need for accommodation I think it is appropriate that she have the house in lieu of her legacy. Apart from her own circumstances it is to be noted that the children of the deceased, although still facing difficulties with mortgages, have one advantage, that is, that they are young and still have years to go where they can earn to improve their situation. The plaintiff is far past that point. This provision will give her added flexibility if she has to go into a nursing home or other aged care of accommodation in the future.

54 The orders that I make are:

1. In lieu of the provision in clause 3 of the deceased's will in favour of the plaintiff that the plaintiff received a bequest of the deceased's house at Normandy Street, Narrawallee.

2. The plaintiff's costs on the ordinary basis and the defendant’s on an indemnity basis be paid or retained out of the estate of the deceased.

3. Exhibits may be returned.

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LAST UPDATED:
4 March 2009