The last matter is that Mr Wilson, gave evidence on which he was not cross-examined about conversations with the deceased in 2005 or 2006, when she complained of being locked in the house, of the telephone plug being pulled out, of being refused medication and wanting to divorce the plaintiff.
20 The defendant, Mr Simpson, who is the executor of the will, who witnessed the power of attorney and the appointment of guardian, although not the will under which he was entitled to charge costs, gave no evidence of and was not questioned about instructions given to him by the deceased for the will. Mr Wilson, who was responsible for finding the solicitor and making the arrangements for the documents, was not asked any questions about his part in this at all. In fact the only question of any note asked of him in cross-examination was whether he informed the plaintiff of the death of his wife, which he did not. No doubt all this can be explained by accepting that Mr Wilson took at face value everything that was told to him by the social workers in the hospital and had come to the conclusion that his aunt was being mistreated by the plaintiff.
21 The conclusion to which I come on what I regard as a generally unsatisfactory state of affairs so far as the evidence is concerned is that the plaintiff and the deceased had a long and generally happy association; that they lived together in reasonable harmony from 2002 until 2005; that the marriage was a real one and was intended to be real; that this marriage did not come to an end; and that the plaintiff moved out because he felt he had no alternative because of the demands of Mr Wilson and that he accepted, rightly or wrongly, that Mr Wilson had obtained control by dint of his power of attorney and his role as guardian. The plaintiff gave evidence in the witness box that he loved the deceased and I consider that statement to be genuine. Nevertheless I find that the plaintiff did not behave at all times in a way which was correct and he was very controlling. There is probably more evidence pointing to inappropriate conduct than the other way. These are matters which must be taken into account in arriving at any decision.
22 While the friendship was a long one, the period of living together was relatively short and the period of marriage was even shorter. I have come to the conclusion that the conduct of the plaintiff is an important matter to be taken into account in determining what order should be made in his favour, but it is not a matter which should preclude the making of any order. It is a matter to be taken into account, as is the age of the plaintiff, who is 81 years of age and as is the fact he is not in particularly good health. There is also to be borne in mind the fact that the plaintiff brought nothing to the marriage by way of assets, all of which were provided by the deceased.
23 Counsel for the plaintiff put that the plaintiff should get the house, which remains unoccupied, and that he get a legacy of $50,000 as well. Although it is sometimes said that it is inappropriate to order provision by way of a life estate in the case of surviving spouses, that is not a universal rule. The extent of the provision which ought to be provided, the age of the applicant for provision, and many other matters bear upon what is an appropriate order. In this case I consider the appropriate order is for an order in the form of what is usually called a Crisp order: Crisp v Burns Philp Trustee Company Ltd (Supreme Court of New South Wales, Holland J, 18 December 2979, unreported) in respect of the home, together with an amount of $50,000 to provide for the immediate needs of the plaintiff. It should be remembered that the plaintiff is a pensioner. I proceed on the basis a legacy of $50,000 will not bear upon this, but if I am wrong I should be told as I proceed on the basis the plaintiff will retain his pension and will be entitled to the benefits of a pensioner so far as rates for the property are concerned. The plaintiff should be responsible for the outgoings on the property. The intention is to provide for the reasonable accommodation needs of the plaintiff for his life. As social security rights may have altered since 1979 the parties should bring forward appropriate orders to generally the same effect as in Crisp.
24 The financial position of the beneficiaries under the will is not such as requires reconsideration of the orders I propose. It is not suggested the pecuniary legacies should be interfered with. Mr Wilson is a consultant with a moderate income which covers his requirements. When he retires he will have the benefit of superannuation of $450,000. He and his wife own their home worth $650,000. They have no children.
25 Mr Alexander Gibson is aged 65. He is blind. He or he and his wife have a half share in a house, that other share being owned by their daughter. A one half share is worth about $230,000. They have a car worth $14,000 and $7,500 in savings. Their income is from a joint pension of $360 a week which covers their weekly expenses of $355.
26 There is no evidence of the financial position of Mr Denis Wilson so it can be assumed it need not be taken into account.
27 I will hear argument about how the burden of the orders I propose to make should be borne, but as the costs will come out of residue, it is probably appropriate the rights of those persons entitled to the proceeds of sale of the home should be postponed to the benefits now given to the plaintiff.
28 The costs of both parties will come out of the estate. Although I will hear submissions, at present I consider the plaintiff's costs should be capped at $50,000.