Eligibility
22The plaintiff being a former wife of the deceased is an eligible person. However it is necessary under s 59 (1) of the Succession Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681, McLelland J when considering that equivalent expression in the Family Provision Act described that expression in the following terms:
"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"
23In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added:
"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."
24These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.
25Having regard to the nature of these comments, the critical question in this case is the nature of the property settlement entered into between the deceased and the plaintiff some 30 years ago. The relevant terms of the property settlement are as follows:
"1. That the husband and the wife forthwith do all acts and things and execute all documents instruments and writings necessary to effect as soon as possible the sale by public auction at a reserve price of not less that $290,000.00 or such other sum as the parties may mutually agree upon the whole of the land...situate at and know as number xx Fowler Crescent Maroubra in the state of New South Wales.
...
3. That the parties cause the proceeds of the said sale to be distributed as set out hereunder:-
...
(c) in payment to the wife of forty percent (40%) of the remaining proceeds of sale;"
26Apart from the details of the sale price of the house, there is little evidence which is now available to suggest that the property settlement was in some way unfair or inappropriate. Certainly there was property, which was sold for $290,000, and the proceeds divided. The plaintiff although not referring to this in her affidavit evidence, when being cross-examined initially suggested that she had not been paid her share of the property. She said the following:
"Q. The house in Fowler Crescent was sold. You accept that?
A. I was told by Mr Connolly that they were going to make a settlement and I was to give him instructions to go and collect the money because if I didn't give him instructions to collect the money, then it would lie there and I would get nothing.
Q. So the house was sold, the proceeds I suggest were distributed in accordance with the Court orders, the lawyers were paid and you went your separate ways, correct?
A. That is not exactly true. I am sorry. I cannot agree with that.
Q. Which part of it don't you agree with?
A. I didn't get any money. I was not there and I object to the whole thing that happened, okay. It was a trauma.
Q. We are going to need to take things step by step. You say now do you, for the first time, that you got no money at all?
A. No money. No money from this deal. Forty percent was a business tax deduction thing. I should have had 50/50 according to the Family Court, Family Law Act 1975.
Q. Ma'am, the Family Court made orders saying that you would not get 50/50?
A. Yes, but the Family Court
Q. Just hear me out, is what you are saying that you got no money at all or is what you are saying that you got less than what you think you deserved?
A. I didn't get money. I wasn't given a statement. I did not participate in the sale. I did not execute anything. I am not interested in the registrar being ordered to sell my house that I built, that I purchased.
Q. So ma'am you did not and your lawyers did not at any point after 1984 make any application to enforce the final orders of the Family Court, did you?
A. Mr Connolly said that
Q. I didn't ask you what Mr Connolly said, my question was you did not make any application to enforce the orders and your lawyers did not, did they?
A. No, nobody did.
Q. If the Court is to believe you now that you say you received no money, can you explain why you didn't make any application such as that in the 25odd years that followed?
A. Because Mr Connolly said he was going do it. He was going to come and take me to the Equity Court.
Q. When did it become apparent to you that Mr Connolly had not done it?
A. When he was struck out.
Q. When was that?
A. I don't remember exactly, in the 80s.
Q. Did you then go and speak to another solicitor?
A. No, I was involved with my mother, my father's estate, the Department of Housing. I was I have been going on and on and on for 33 years, all alone.
Q. Is it your evidence to the Court firstly that you received no money out of the sale of xx xxxxxx xxxxxxxx?
A. That's right."
27During the further cross-examination it emerged that in fact she had been paid monies by her solicitors from time to time and that in 2007 she still had investments resulting from these payments in the sum of approximately $137,000, and in 2010 investments to the value of $55,950. Her further cross-examination included the following:
"Q. And it was the case that in July of 2007 you held somewhere near $140,000 worth of shares?
A. They were bought for my children.
Q. Yes. What money did you buy those shares with?
A. Well, I saved because I was living with my mother and also Mr Connolly gave me some money.
Q. Mr Connolly gave you some money? So your solicitor in the Family Court proceedings gave you some money?
A. Yes.
Q. I suggest to you that was the money out of the proceedings of the sale of Fowler Crescent?
A. Yes.
Q. Yes, it was?
A. Yes.
Q. Thank you?
A. Which he took and never gave me a statement."
28It seems that the complaint made by the plaintiff was more directed to the fact that there had been a lack of accounting to her in respect of her share of the property settlement.
29Plainly, the plaintiff is unhappy about the property settlement but she was represented in the property adjustment proceedings by a solicitor and both senior and junior counsel.
30Searches of the Family Court file show that no application was made for a variation of the orders or to set aside the orders. In my view, there is nothing arising from the terms of the property settlement which would constitute factors warranting in respect of the application.
31The plaintiff also held a firm view as to whether she should inherit her husband's estate as the result of Jewish law. In her evidence she said the following:
"In Jewish law, two people consummate a marriage, and if divorce, two people have to be present at the Divorce in Court...as it was at the Sydney Beth Din, which Joe Beder would not attend until ordered by the Magistrate in the Children's Court to do so ... I got my gett [sic] ......Joe Beder did not attend the Court for the civil divorce, therefore I am still legally married to him according the[sic] the laws in Judaism, in Australia, and his widow. ...As Joe Beder's widow, I inherit his whole Estate..."
32Although the Jewish law may have provisions such as those to which the plaintiff believes, the present entitlement on a divorce is governed by the provisions of the Family Law Act 1975 in Australia. In my view, questions of this nature do no constitute factors warranting the making of the application.
33One of the matters that pervades the plaintiff's evidence in this case is her constant complaint of having been homeless over the years since her divorce. Plainly she has had houses to live in over that period. Up until 1999, she mostly resided in her parent's house although she moved out to other private accommodation from time to time. Between 1999 and 2007, she was housed in the public sector. Unfortunately, that period was also marred by disputes with authorities over the accommodation provided and eventually she lost her entitlement to public housing. She now resides in public housing in Oxford St Bondi.
34The plight of the plaintiff is no doubt difficult in terms of her continuing housing and it is apparent that one of her bitter disappointments is that she does not have a house that she owns as her family home. She regards this as her entitlement and is still striving to achieve it.
35Her mother died recently in August of this year. Probate has not been obtained in her estate which has a value in the order of $568,753.37. The estate passes to the plaintiff and her brother in equal shares and accordingly she will receive in the order of $270,000 as a result of the distribution in that estate. She has already flagged the fact to her brother that she will be making a claim on her mother's estate and intends to try and obtain the whole of the estate.
36The complaints that the plaintiff has about the quality of the housing which she had enjoyed since the divorce are not in my view factors which would warrant the making of the application. They are all matters which are peculiar to her own situation and quite unrelated to the arrangements between herself and her husband as a result of their marriage. There is also evidence that the plaintiff and the deceased had little or no contact for the 30 years since their divorce and completion of their Family Court proceedings.
37In my view there are no factors warranting the making of the application and accordingly I dismiss the proceedings.
38In case a different view might be taken on this question, I turn to express some views and findings in respect of other matters which have arisen for consideration.