Baldwin v Favre

Some background facts

1. It does not appear from the evidence read before me that the facts pertinent to the present application will be seriously in dispute at the final hearing, although the Court notes that Mr Liebhold (who is not briefed on the final hearing) understandably reserved his client's position insofar as the hearing before me did not involve any cross-examination, which will not be the case at the final hearing. For the purposes of the present application, being one in which the Court does not make findings of fact, I have taken account of the following facts for the purposes of forming the opinion required under s 62 of the Act and weighing the strength of Ms Baldwin's case for the purpose of injunctive relief.
2. Ms Baldwin is 63 years old and was born in the Philippines. She has little formal education, having only completed year 6 and left school at the age of 11 to work on her family's farm. She came to Australia in 1989 sponsored by the man who became her first husband, Mr Robert Baldwin. She had two sons with Mr Baldwin. Meaning no disrespect by using only their given names, those sons are Scott (born 1989) and Michael (born 1990). She divorced Mr Baldwin in 1993 and thereafter was sole carer for her sons.
3. Ms Baldwin met Mr Fisher in 2002 at the Burwood RSL, where she was then employed. He told her that his children from his first marriage were all adults. Mr Baldwin had four children from his first marriage including Ms Favre, of whom three survive.
4. A romantic relationship between Ms Baldwin and Mr Fisher began shortly thereafter and before the end of the year she and her two sons had moved in with him. From 2011, she ceased all employment and was thereafter wholly financially dependent on Mr Fisher until his death. Her evidence discloses current personal assets valued at less than $10,000.
5. In 2008, Mr Fisher and Ms Baldwin inspected Breakfast Pt and Ms Baldwin paid a $2,000 cash deposit towards its purchase. It was purchased in Mr Fisher's name only, a fact of which Ms Baldwin says she was unaware until after his death. Mr Fisher, Ms Baldwin and her two sons then moved into Breakfast Pt. Ms Baldwin's evidence is that Mr Fisher represented to her more than once that Breakfast Pt was for her and her sons, and that Pindimar was for him and his family from his first marriage.
6. It is convenient to say something at this point about the two properties. Breakfast Pt is a two bedroom apartment in a secure complex. While she lived there, Ms Baldwin built up connections with a nearby Catholic church and services such as the local medical practice. It is in an urban area with all the amenities one might expect nearby.
7. Pindimar, where Ms Baldwin is currently living pursuant to the interest, is a four bedroom home on a one acre property on the central coast, more than 200 kilometres north of Sydney. It has no shops or services, the nearest being 15 kilometres away at Tea Gardens. The nearest department store or specialist medical services are 50 kilometres distant, and the nearest hospital is at Maitland, 66 kilometres away from Pindimar. Ms Baldwin says she does not feel safe at Pindimar and that she wishes to live at Breakfast Pt.
8. There is a dispute between the parties about the value of the two properties.
9. Pindimar has been valued for probate purposes at $1.15 million. Ms Baldwin's evidence values Pindimar at between $1.5 and $1.6 million, Ms Favre's evidence includes valuations between $1.1 and $1.5 million.
10. Breakfast Pt has been valued for probate purposes at $1.4 million. Ms Baldwin's evidence includes two valuations of $1.5 to $1.55 million. Ms Favre's valuations are between $1.785 and $2 million.
11. In 2009, Mr Fisher moved to Pindimar.
12. After a period of splitting her time between the two properties, from 2012 Ms Baldwin was living permanently with Mr Fisher at Pindimar. Her sons remained at Breakfast Pt with (according to Ms Baldwin) the knowledge and consent of Mr Fisher, including contributing to outgoings after they commenced employment. Ms Baldwin visited, and visits, them there monthly. They continue to live at Breakfast Pt, notwithstanding a demand by the Estate that they vacate the property on the basis that they have no enforceable right to remain there.
13. Ms Baldwin appears to have been a loving and attentive partner to Mr Fisher, being with him and caring for him throughout their relationship until the day he died in her presence on 30 April 2023. These proceedings were commenced in time by summons filed on 16 October 2023.

The estate and the will

1. The estate is valued for probate purposes at $3.4 million, comprising primarily the two properties, together with cash, shares and personal effects.
2. Mr Baldwin had a superannuation fund. As at March 2024, the value of that fund was $614,000. By reason of a binding nomination made by Mr Fisher, Ms Baldwin is entitled to draw (and is now drawing) a monthly pension from the fund, currently totalling $98,000 per annum.
3. The interest is created by Clause 6 of the will, which includes: "6. Right of Residence including Life Interest In this clause: a) "the residence" means my property located at XXXX North Pindimar NSW 2324 or any property which has replaced this as my main residence at my death; b) "home expenses" in respect of the residence shall mean the payment of all rates, taxes, insurance premiums, and rental or maintenance fees and maintaining the residence in a state of repair to my executor's satisfaction; c) "the beneficiary" means my partner Florencia Rosabelle Baldwin ("Rosabelle"); d) "legal personal representative'' shall include a person or persons legally appointed by the beneficiary to act financially on her behalf under any relevant legislation and failing any such appointment by the beneficiary then a person or persons appointed by any court or judicial tribunal, under an Act of Parliament governing the appointment of Guardians and Administrators made on the grounds of disability, infirmity or lack of legal capacity. 6.1 If Rosabelle survives me, then I direct my executors to hold my interest In the residence on trust and, subject to all the powers in Part C of this Will, my executors shall deal with it in accordance with the remainder of this clause. 6.2 My executors must permit Rosabelle to personally reside in the residence until the first to occur of the following: a) the date of Rosabelle's death; b) the date Rosabelle ceases to live in the residence permanently in the opinion of my executors; c) the date Rosabelle notifies my executor in writing that she no longer wishes to reside in the residence; d) the date Rosabelle fails to meet the home expenses for a period of time that is considered unreasonable in the opinion of my executors; with such date to be known as the "distribution date". 6,3 Until the distribution date the residence shall not be sold without Rosabelle's written consent or the written consent of her legal personal representative. 6.4 If Rosabelle or her legal personal representative notifies my executors in writing that she no longer wishes to reside in the residence my executors shall sell the residence and apply all or part of the proceeds of sale as follows: a) i) If Rosabelle or her legal personal representative notifies my executor in writing that Rosabelle wishes to do so, to purchase a suitable substitute residence in which Rosabelle will have a personal right to reside and to which the provisions of this clause shall apply as if the substitute residence was the residence; or ii) With the consent of Rosabelle or her legal personal representative, to enable her to enter into suitable aged care accommodation, including but not limited to payment of deferred management fees, exit fees, retention amounts or such other costs or fees incurred pursuant to a residency agreement or an accommodation bond agreement; and iii) If on the sale of the residence and purchase of a substitute residence or entry into aged care accommodation (''the settlement day") there is a surplus of funds, then these surplus funds shall be distributed in accordance with the terms of the final subclause of this clause (and in such circumstances "the distribution date" as referred to in that subclause shall mean the date of distribution of those surplus funds) unless, within 21 days of the settlement day, Rosabelle or her legal personal representative notifies my executor in writing that the beneficiary elects to invest the surplus funds during the remainder of Rosabelle's life, in which case the surplus funds shall be invested in accordance with the following subclause; or b) To invest all the proceeds during the remainder of Rosabelle's life in accordance with the following subclause. 6.5 If any monies are to be invested during the remainder of Rosabelle's life under this clause ('the fund") my executors shall hold the fund on trust and shall deal with the fund in accordance with the remainder of this subclause: a) Rosabelle shall be the primary life tenant for her life ("the term"); b) at the end of the term, the balance of the fund shall be distributed in accordance with the final subclause of this clause; and c) during the term, my executors shall distribute the balance of the net income or net taxable income (including any category thereof) of the fund to Rosabelle, or with the consent of Rosabelle, to any one or more of the following: i) my daughters Louise Ann Gaggin and Nerida Jean Favre and my son William Stanley Fisher and my granddaughter Madison Jade Fisher; ii) the spouse and children of any of the persons specified in this paragraph; and iii) the entities (including companies and trusts) in which any of the above persons are a director, or directly or indlrectly have an absolute, contingent or expectant Interest. 6.6 If a substitute residence is to be acquired under this clause: a) my executors may only use a maximum of the proceeds of sale of the residence to acquire any substituted residence (including any acquisition costs); b) my executors shall only be liable far any acquisition costs (including stamp duty), that are proportionate to my estate's interest in the substituted residence; c) I require that Rosabelle's interests are, for the purposes of this clause only, to take precedence over any interest or expectancy as to net income or capital of any other beneficiary or beneficiaries of this Will. 6.7 On the distribution date my executors shall divide the residence, its proceeds of sale, or any remainder interest payable to my deceased estate from any aged care housing arrangement, into one or more equal parts, sections, portions or percentages as follows and shall hold on trust in accordance with Part C of this Will and, subject to any adjustment provisions and to the discretion given to my executors in Part B of this Will, dispose of such parts, sections or portions as follows. a) Each of my daughters Louise Ann Gaggin and Nerlda Jean Favre and my son William Stanley Fisher and my granddaughter Madison Jade Fisher who are alive on the distribution date and attain the age of 25 years shall be the primary beneficiary of such trust. …"
4. The residuary beneficiaries under the will are Mr Fisher's three surviving adult children and his grand-daughter. Each of the children has put his or her circumstances in issue, and Mr Liebhold was instructed that Mr Fisher's grand-daughter also intended to do so.

Ms Baldwin's notice of motion

1. By notice of motion filed on 29 February 2024, Ms Baldwin seeks: 1. Orders, by way of interim provision pursuant to s 62(1) of the Succession Act 2006 (NSW), the plaintiff be entitled to reside in the property located at XXXX, Breakfast Point NSW (more particularly described as folio XXXXX) pursuant to clause 6.1 to 6.7 of the Will of the late William Harvey Fisher dated 23 July 2015, in lieu of the right given to her to reside in the deceased's other property at XXXX, North Pindimar NSW 2324. 2. Orders the Defendant be restrained from selling, encumbering or dealing with the property located at XXXX, Breakfast Point NSW (more particularly described as folio XXXX) pending further order. 3. Further and other orders. 4. Costs.
2. Ms Favre has given an undertaking not to deal with Breakfast Pt until the present motion is determined. However, she has not agreed to Ms Baldwin's requests that the estate agree to Breakfast Pt becoming the subject of the interest in substitution for Pindimar.

Legal principles

1. There was no dispute about the applicable principles.
2. Section 62 of the Act provides: 62 Interim family provision orders and orders restraining distribution of the estate (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order.
3. I respectfully adopt and apply the summary of the principles in relation to applications for interim provision set out in the judgment of Meek J in Byrd v Margiotta [2023] NSWSC 1556 at [65] - [95].
4. Of some importance to the present application is the parties' acceptance that the test to obtain interim provision under s 62 is different to, and in practical operation more stringent than, that required to obtain injunctive relief in equity: see Byrd at [90]. There can be no doubt that the Court can restrain an executor from dealing with estate property in its familiar jurisdiction to make orders preserving the subject matter of the dispute: Boaz v Hyde [2014] NSWSC 1591 per Hallen J at [19] - [21]. The difference in approach between the two bases for relief was also discussed by Parker J in Le v Angius [2022] NSWSC 240, in which his Honour said (and I respectfully agree): 65 There is of course no difficulty in principle with the Court making an order on a conventional interlocutory basis in family provision proceedings. If the plaintiff can show sufficient prospects of obtaining provision in the form of a proprietary interest in specified property belonging to the deceased, then the Court may make an appropriately framed interlocutory order to preserve that interest until the final hearing, provided that it is proper to do so after considering the balance of convenience.

Ms Baldwin's submissions

1. Mr Birtles submitted that at the final hearing Ms Baldwin's claim would be for an absolute devise of Breakfast Pt in lieu of the interest in Pindimar, together with a further sum to supplement what she will receive from the fund.
2. He submitted that Ms Baldwin, as Mr Fisher's loving partner of some twenty years, had a strong case that, given the practical differences between the two properties, the interest in Pindimar was inadequate provision for her accommodation, whereas an absolute interest in Breakfast Pt was clearly proper provision for her. At Breakfast Pt she would be in a home which she had been involved in selecting, and that was close to shops, services and the church with which she wished to be affiliated.
3. It followed, so the argument went, that the Court could form the requisite opinion under s 62 that she would receive at final hearing no less than a portable life interest in accordance with clause 6 of the will but in relation to Breakfast Pt. The interim provision order sought would also enable Pindimar to be sold, with Ms Baldwin acknowledging that in the first instance the proceeds of sale would be available to Ms Favre as executor for the purposes of administration of the estate, including for the conduct of these proceedings.
4. Alternatively, it was contended that these same considerations satisfied the requirement for injunctive relief and that the balance of convenience clearly favoured Ms Baldwin in ensuring that Breakfast Pt remained available rather than being at risk of sale in the course of administration of the Estate.
5. Insofar as there was a dispute between the parties about the value of the two properties, the course proposed by Ms Baldwin also had the advantage that at least the doubt about the value of Pindimar would be resolved by its sale.

Ms Favre's submissions

1. Mr Liebhold submitted that Ms Baldwin's case for additional provision was weak because the will provided what the law expected for a partner of many years who had been dependent on the deceased, being secure accommodation for life and adequate income: see, for example, Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [98] to [109] (per Brereton JA; Simpson AJA agreeing).
2. Furthermore, insofar as the present motion was concerned, Ms Baldwin was not complaining of any urgent need that required satisfaction before any final hearing: she had a roof over her head and adequate income from the fund. Nor, for these reasons, could the Court be satisfied that Ms Baldwin would ultimately receive no less than the proposed interim provision, especially given the dispute between the parties about the value of the properties and the competing claims advanced by the residuary beneficiaries.
3. It was also submitted that the Estate was quickly depleting its available cash and that Breakfast Pt needed to be sold to provide funds, including for the defence of these proceedings.
4. The same arguments were relied upon to demonstrate that the threshold for interlocutory relief had not been met. The balance of convenience, given the Estate's need for funds, was not in favour of preventing the sale of Breakfast Point. Furthermore, Ms Baldwin was said not to be able to give a meaningful undertaking as to damages.
5. Finally, it was submitted that it was open to the Court to find that Ms Baldwin's application was motivated by a desire to delay the administration of the Estate to the advantage of her sons, especially insofar as they were enjoying free accommodation at Breakfast Pt because they were not paying any occupation rent. I immediately record the Court's rejection of that submission about Ms Baldwin's motivation as not supported by the evidence.
6. I also record that, correctly in my respectful view, Mr Liebhold did not suggest that as a matter of principle an injunction could not be granted in aid of an application under the Act, including one which might contain a mandatory element insofar as it could require the estate to permit Ms Baldwin to occupy Breakfast Pt.

Consideration

1. In my experience, applications for interim provision are infrequent. I respectfully agree with Meek J's observation in Byrd that a major cause for hesitation on the part of potential applicants is what I shall refer to as the "no less than" requirement. The requirement is more easily satisfied where the interim provision is a sum of money. It is more straightforward for the Court to form the requisite opinion where the amount sought is a modest one and the case for provision (or additional provision) in money at the final hearing is reasonably clear.
2. However, this case is unusual in that it involves a comparison between two properties where they are clearly of two different kinds and where there is a dispute about their values. The comparison invited by Mr Birtles is certainly open: Ms Baldwin will be asking for Breakfast Pt absolutely and, perhaps, an additional fund, but she will get no less than a portable life interest in Breakfast Pt on the terms of clause 6 of the will. However, it is not obvious, for example, why the value of the interests is not the correct comparator rather than the nature of the interest in meeting the "no less than" requirement.
3. Furthermore, and more pertinently, I am not satisfied on the balance of probabilities that Ms Baldwin will receive "not less than" the portable life interest in Breakfast Pt. This is because, in that event, I consider there is a more than fanciful possibility that at the final hearing the Court may, if it takes the view open on the evidence that Breakfast Pt is worth more than Pindimar, require some kind of financial adjustment between Ms Baldwin and the residuary beneficiaries, given Mr Fisher's explicit testamentary intention that his children should obtain the benefit of Breakfast Pt. An important part of this potential equation is the competing circumstances of those beneficiaries, a matter which the Court cannot sensibly make an assessment about in the circumstances of an application of this kind. Nevertheless, the point for present purposes is that the effect of such an adjustment might mean that Ms Baldwin does get something "less" than a portable life interest in Breakfast Pt simpliciter.
4. For this reason, the Court is unable to form the requisite opinion in relation to the "no less than" requirement. The discretion to make the interim provision order sought by Ms Baldwin is therefore not engaged.
5. That being said, the Court is well satisfied that the reasons advanced by Mr Birtles demonstrate that Ms Baldwin has a seriously arguable case that she is entitled to a family provision order under the Act that will give her a proprietary interest of some kind in Breakfast Pt, whether that be a portable life interest or an absolute devise. She has given evidence that if she is permitted to live at Breakfast Pt pending determination of the proceedings, she will vacate Pindimar within six weeks to enable it to be sold.
6. The balance of convenience clearly favours preservation of Breakfast Pt. The proceedings are ready to take a hearing date, which could still be a date late this year. Contrary to the submission put for Ms Favre, the existence of the fund means an undertaking as to damages by Ms Baldwin has substance. The other matters of concern which were raised on behalf of the Estate were Ms Baldwin to be allowed to occupy Breakfast Pt can be adequately addressed by provision of the undertakings which I propose below.
7. Finally, I record that even if I had been satisfied that the discretion to make an interim provision order had been enlivened in this case, I would not have done so in preference to laying an injunction. While an interim provision order can be made on terms, in my respectful opinion the mechanism of an injunction with undertakings offers greater flexibility to fashion an interlocutory solution which does justice to both parties.
8. An injunction also has the advantage that at the final hearing the Court can consider Ms Baldwin's application for provision as a blank canvas. If an order for interim provision had been made, then the Court would be constrained by the requirements of s 62(2) of the Act, even if it might be argued that those constraints may be seen as more theoretical than real.

Conclusion

1. Subject to any further submissions the parties may wish to make as to their final form, the undertakings and orders the Court proposes are: Upon the plaintiff by her counsel giving to the Court these undertakings: 1. the usual undertaking as to damages; 2. to give the defendant vacant possession of Pindimar no later than 26 July 2024; 3. subject to any agreement otherwise between the plaintiff and the defendant, to pay or otherwise be personally liable (including by indemnifying the Estate) for Occupation Rent and Home Expenses incurred or referable to the period from 18 June 2024 and thereafter while she or either of her sons are living at the Property until further order; 4. on or before 24 June 2024 to give the defendant notice in writing under clause 6.4 of the Will that she (the plaintiff) no longer wishes to reside at Pindimar; 5. that she will not object to the defendant: 1. selling Pindimar; and 2. to the extent the Estate is otherwise without funds to meet the costs of these proceedings and for the due administration of the Estate, applying the proceeds of sale of Pindimar for those purposes, without prejudice to any adjustment in the plaintiff's favour to which she may be entitled in the proper course of administration or by order of the Court, the Court orders that: 1. until the plaintiff and defendant may agree otherwise or further order, the defendant shall: 1. permit the plaintiff and her sons, Scott Baldwin and Michael Baldwin, to live in the Property and not interfere with their quiet enjoyment of the Property; and 2. not sell, encumber or otherwise deal with the Property. 1. The defendant is to pay the plaintiff's costs of the latter's motion filed 29 February 2024. 2. The proceedings are listed before the Registrar on 19 June 2024 to obtain a final hearing date. 3. There be liberty to any party to apply at short notice, in the first instance to the Probate and Family Provision List Judge or, in his absence, to the Duty Judge in relation to these orders. 4. In these orders: "Deceased" means William Harvey Fisher. "Estate" means the estate of the Deceased. "Home Expenses" has the same meaning as in the Will but applied to the Property. "Occupation Rent" means a retrospective monthly rental payment in respect of the Property to which these terms apply: 1. It will be payable only if the plaintiff does not obtain a life (including portable life) or absolute interest in the Property at the final hearing (or any appeal); and 2. It will be calculated as a monthly rental either in such sum as the parties may agree within 28 days after the making of final orders at first instance in these proceedings, or in default of such agreement the amount will be the average of the monthly rental determined by kerbside assessments by two real estate agents practising in the Breakfast Point area, one agent being nominated by each party with the nominations to occur no later than 42 days after the making of final orders at first instance in these proceedings. "Pindimar" means the property at XXXX St, Pindimar. "Property" means the property known as XXXX, Breakfast Point, NSW. "Will" means the will of the Deceased made on 23 July 2015.

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