Barbara Mayfield v Suzy Carolyn Lloyd-Williams

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

003186/01 BARBARA IRENE MAYFIELD - ESTATE OF LEONARD JOHN STEWART v SUZY CAROLYN LLOYD-WILLIAMS IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THE LATE SHIRLEY MERNA STEWART & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff is the daughter and only surviving child of the late Leonard John Stewart who died on 31 December 1999 aged 85. She seeks an order pursuant to s 7 of the Family Provision Act 1982 (NSW) that provision be made for her maintenance, education and advancement in life out of the notional estate of Mr Stewart. 2 The deceased died intestate. Letters of administration were granted to his widow, Mrs Shirley Stewart on 7 March 2001. His estate was modest. According to the inventory of property attached to the letters of administration it consisted of a house at Earlwood valued at $350,000.00 and other property valued at $63,247.40. Immediately before his death the deceased and his wife jointly held shares, other securities and a bank account which at his death were valued at $5,345,661.65. They passed to his wife, Mrs Shirley Stewart, by survivorship. 3 Mrs Shirley Stewart died on 7 May 2001. The defendant, who is Mr Stewart's niece, is the executrix and sole beneficiary of Mrs Stewart's estate. 4 The value of Mrs Stewart's estate was stated by the defendant in accordance with s 81A of the Wills Probate and Administration Act 1890, to be $8,257,820.29. 5 It is common ground that by not severing the joint tenancy before his death the deceased entered into a prescribed transaction. It is common ground that, if I am satisfied that an order for provision ought to be made, I may make an order designating as notional estate of the deceased a one half interest in the shares which were jointly owned during his life. The value of that one half interest as at 13 May 2004 is agreed to be $3,546,845.50. 6 As a result of Mrs Shirley Stewart exercising her right under s 61 D of the Wills Probate and Administration Act 1890 to take the matrimonial home she exhausted her entitlement on intestacy to a share of the deceased's estate. The plaintiff and a Mr Adam Simpson, the deceased's grandson by his second daughter, are entitled to share equally in the remaining assets of the estate which are now valued at $82,159.00. Neither party contends that provision for the plaintiff under the Family Provision Act 1982 should be made from Mr Simpson's share of the estate. In assessing whether any provision should be made in favour of the plaintiff from the notional estate I must take into account that she is entitled to $41,079.50 from the estate. 7 Sections 7 and 9 (2) of the Family Provision Act create a two-stage process for dealing with applications under the Act. The Court may not make any order for provision in favour of an eligible applicant unless it is satisfied that the provision, if any, made in favour of the applicant by the deceased person either during his lifetime or out of his estate is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the applicant. (Section 9 (2)). If the Court is satisfied that the provision, if any, so made for the applicant is inadequate for his or her proper maintenance, education and advancement in life, it has a discretion under section 7 to order such provision out of the estate or notional estate of the deceased person, as in its opinion, having regard to the circumstances at the time the order is made, ought to be made for the maintenance, education or advancement in life of the applicant. 8 In his final submissions Mr J Wilson SC, who appeared with Ms C Dick for the defendant, conceded that the provision provided by the rules of intestacy, that is $41,079.50, was not adequate. Therefore the first stage of the two-stage process in dealing with applications under the Act is satisfied. There is no longer an issue as to whether, having regard to s 9(2) of the Act, the Court has jurisdiction to make an order for provision under s 7. Nonetheless in determining whether to exercise my discretion under s 7 I must address all of the circumstances relevant to determining what provision would constitute "proper" maintenance and advancement in life of the plaintiff. (Singer v Berghouse (1994) 181 CLR 201 at 209-210; Wentworth v Wentworth (1995) 37 NSWLR 703 at 737-738). No question arose of provision for the plaintiff's education. The Relationship between the Plaintiff and the Deceased 9 The totality of the relationship between Mr Stewart and the plaintiff is an important factor in determining what is adequate provision for the plaintiff's proper maintenance and advancement in life from the estate and notional estate of Mr Stewart. (Singer v Berghouse (1994) 181 CLR 201 at 209-210). This aspect of the case generated a great deal of evidence. Some parts of the evidence directly conflicted with other parts. In particular, the evidence of the plaintiff and members of her family conflicted with the evidence of Mrs Muriel Lloyd-Williams, who is the mother of the defendant and Mr Stewart's sister, regarding Mr Stewart's relationship with the plaintiff and her family. 10 It would theoretically be possible to reconcile most of this evidence by saying that the deceased may have spoken and acted in a certain way towards the plaintiff and her family but told a completely different tale to his sister. However I think that is unlikely. Accordingly I have had to determine whether I should disbelieve or discount the plaintiff's version of her and her family's dealings with Mr Stewart, because of Mrs Lloyd-Williams' evidence of what Mr Stewart told her about his dealings with and feelings towards the Mayfields. I do not think the plaintiff's evidence, or that of her family, should be disbelieved or discounted on that account. 11 In the description of events which follow I have generally adopted the evidence of the plaintiff. I explain later in these reasons why I have not accepted Mrs Muriel Lloyd-Williams as a reliable witness. 12 It was common ground that for 26 years, between 1969 and 1995 the plaintiff and her father did not see one another. However in the last 4 years of his life relations were re-established. It was the plaintiff's case that their relationship became a close and loving one. The defendant disputed this and relied principally on what Mrs Muriel Lloyd-Williams said Mr Stewart had told her about his feelings towards the Mayfields. It was the defendant' case, as outlined in the evidence she adduced if not in final submissions, that the plaintiff and her father never became close, that he was indifferent to her and her family, that he was offended by the Mayfields' treatment of his wife and by their pushiness in relation to his financial affairs. 13 With that background I turn to a chronological narrative of the principal events. 14 Mr Stewart was born on 10 October 1914 at Collingwood in Victoria. He married Irene Churcher on 15 June 1940. They had two children, the plaintiff who was born on 10 January 1942 and Judith who was born on 17 November 1947. Judith died on 13 August 1998 and is survived by her son, Adam Simpson. 15 When Mr Stewart married Irene Churcher he was working as a stores clerk at the Navy Stores in St Kilda Road, Melbourne. They purchased a house in Oakleigh in Victoria. 16 The relationship between Mr Stewart and his wife deteriorated in about 1951 or 1952. On about 3 March 1954 Mrs Irene Stewart (as she was then known) left home taking the plaintiff and Judith with her. The plaintiff, was then 12 years old, and Judith was 7. It is not necessary or appropriate to dwell on the reasons for the breakdown of Mr Stewart's first marriage. The plaintiff recalls her father at the time she was living with both her parents at Oakleigh as being a loving and caring parent. 17 After Mrs Stewart left the matrimonial home she and her daughters lived in rented accommodation in Highett, Victoria. She worked at a nearby plastics factory whilst the children attended school. By this time the plaintiff had started high school and Judith had commenced at a local primary school. 18 A decree nisi for the dissolution of the marriage was granted by the Supreme Court of Victoria on 25 October 1954 and was made absolute on 26 January 1955. During discussions about the divorce Mr and Mrs Stewart agreed that they would split custody of the children between them. In or about 1955 Mr Stewart moved to Sydney. He took Judith with him. The plaintiff remained with her mother in Melbourne. Her mother did not receive maintenance for the plaintiff's support from Mr Stewart, but she remarried in June 1955. 19 The plaintiff, to use her words, was devastated when her father and sister moved to Sydney. She spent many of her school holidays in Sydney with them. She was warmly welcomed by her father on those occasions. Her father rarely returned to Melbourne. The plaintiff recalls spending some time with him in Melbourne in 1956 during which time he took her to the Melbourne Olympic Games. 20 The plaintiff left school at the age of 16. She travelled about once a year to Sydney to see her father and her sister. When she was 21 she stayed in Sydney for 6 months while she worked at a department store, Anthony Hordern. During that time she stayed in a flat in Cremorne with a second cousin. 21 On 5 July 1968 when the plaintiff was 26, she married Donald Oscar Mayfield. Mr Mayfield was and is a farmer. He inherited a farm in Western Victoria from his family. Coincidentally, the farm is also called Oakleigh. The plaintiff and Mr Mayfield have lived there since their marriage. It is situated near Cavendish about 32 kilometres from Hamilton. 22 For reasons which were unexplained her father did not attend the plaintiff's wedding. He did send a wedding present and a card expressing his best wishes to her. 23 On 5 October 1968 Mr Stewart married Shirley Merna Moss. There were no children of the marriage. Mrs Shirley Stewart did not have children. They remained married until Mr Stewart's death on 31 December 1999. 24 The plaintiff did not attend her father's wedding. Her reason, she said, was that she was busy cooking for the shearers on the Oakleigh farm and couldn't leave the property. I accept that the reason for the plaintiff's not attending her father's second wedding was because of commitments which she had at Oakleigh. 25 The plaintiff's sister Judith was married in 1969. Both the plaintiff and her husband, and Mr Stewart and his second wife, attended the wedding. This was the first time the plaintiff met Mrs Shirley Stewart. The plaintiff and her father were not to meet again for 26 years. 26 The plaintiff's first child, Imogen, was born on 13 September 1969. Her son Grainger was born on 15 June 1971. Her youngest child, Bradley, was born on 29 October 1974. She did not visit her father and he did not see her or his grandchildren. I accept that the reason for this was the distance separating the plaintiff and her father. Whatever might have been Mr Stewart's capacity to travel, the plaintiff had commitments on the farm and to her family. The plaintiff said, and I accept, that there was a period of about 20 years when she and her husband could not leave the property. 27 When the plaintiff's children were born, and whilst they were young, her father sent his grandchildren birthday cards and presents. 28 From about the early 1970s there was little contact between the Mayfields and Mr Stewart. There were some telephone calls between the plaintiff and Mr Stewart, but after the birth of her youngest son Bradley in 1974 the plaintiff did not speak to Mr Stewart until 1995. The evidence does not permit a definite finding as to the frequency of telephone calls, cards and letters, but my impression is that they were irregular at best. There is no evidence that this was due to a quarrel; rather the plaintiff and her father had separate lives. Mr Stewart had not lived with his daughter since she was 12. Their relationship could not be described as a close one, but I do not infer that Mr Stewart had any feelings of antagonism towards or dislike or disapproval of the plaintiff. 29 The plaintiff's sister Judith married a Mr Tim Simpson. She had a son, Adam, who was born in 1973. Judith and Mr Tim Simpson separated in 1976 and were divorced not long afterwards. After her divorce Judith moved to Melbourne. In 1992 she married her second husband, Mr Ray Hille. Mr Stewart was not invited to Judith's second wedding. 30 Mr Stewart's father died in 1968 and his mother died in 1969. The plaintiff did not attend the funerals of either of her paternal grandparents. She was not close to either of them having been brought up by her mother after her parents separated. Mr Stewart's sister, Mrs Muriel Lloyd-Williams, gave evidence that the plaintiff did not have any contact with her father at the time of his parents' deaths. The plaintiff says that she telephoned her father to console with him. I accept the plaintiff's evidence. 31 On 25 February 1995 Imogen Mayfield, the plaintiff's daughter, married Christopher Dinges. Christopher Dinges was then employed as a farm manager on a property known as "Tuloona" near Harrow in Western Victoria about 60 kilometres north west of Oakleigh. Imogen was instrumental in bringing about a meeting between her mother and grandfather. In June or early July 1995 she rang her grandfather "out of the blue" and invited him and Mrs Shirley Stewart to visit them.

32 On 26 July 1995 Imogen wrote to her grandfather and Mrs Shirley Stewart, enclosing photographs of the family and describing what she and other members of her family were doing. She concluded by asking her grandfather to keep in touch. Mr Stewart kept the letter. 33 Imogen Mayfield arranged for Mr and Mrs Stewart to spend Christmas 1995 at Tuloona. They arrived at Tuloona a few days before Christmas Day 1995 and joined the rest of the Mayfield family for Christmas Eve at Oakleigh. On Christmas Day, the plaintiff, her husband and their son Bradley drove to Tuloona for Christmas lunch with Christopher and Imogen and Christopher's parents. They stayed at Tuloona for about 5 days. At the time of the visit Imogen was pregnant with her first child, Oscar, who was born the following March. The plaintiff says, and I think it is probably true, that Mr Stewart expressed concern for Imogen's wellbeing and pleasure at the prospect of having his first great-grandchild. It would be odd if he did not. 34 After spending about a week with Christopher and Imogen at Tuloona, Mr and Mrs Stewart spent about 2 weeks with the plaintiff and her husband at Oakleigh before returning home to New South Wales. 35 Mrs Muriel Lloyd-Williams gave evidence that after the visit Mr Stewart told her that seeing the plaintiff again was just like meeting anybody and that he had no feelings for her or her children. I do not accept this evidence. If Mr Stewart said this, I do not think it reflected his true feelings as disclosed in the evidence of the plaintiff and of Imogen Dinges and, perhaps more importantly, by his subsequent conduct. Mr and Mrs Stewart visited the Mayfield's again over the following Christmas for about two to three weeks. On that visit they also spent a few days with Imogen and Christopher and their new son at Tuloona. 36 The plaintiff has produced four birthday cards from Mr and Mrs Stewart which she says were given to her "over the course of the 1990's". The last two were addressed to "Our darling daughter" and to "Darling Barbara" and were expressed to be from her "loving parents" or to be given with "all our love". There is a noticeable increase in the warmth of the affection expressed in these later cards from that shown in the card sent on the plaintiff's wedding. 37 Mr and Mrs Stewart took an extended overseas trip between June and September 1997. On 17 May 1997 Mr Stewart wrote to the plaintiff and her husband. He said that he and Mrs Stewart would not be coming down to Cavendish that Christmas but hoped that they would be down the following year, that is, at the end of 1998. Mr Stewart expressed the wish that perhaps in the meantime the plaintiff and her husband could visit him and Mrs Stewart. He described himself as the plaintiff's "loving father". The reason for not going to Oakleigh for Christmas in 1997 was that they planned to take things quietly after their extended overseas trip. Mr Stewart had some health problems at the time. He was then 82 and Mrs Stewart was in her late seventies. 38 On 1 March 1998 Mr and Mrs Stewart wrote to the plaintiff and her husband wishing them a happy grandparents day on 8 March. They gave them their love. 39 It seems to me that in the period from Christmas 1995 to at least March 1998 there is objective evidence, contained mostly in the form of correspondence from the deceased and Mrs Shirley Stewart and in photographs taken during the visits to Oakleigh and Tuloona, that the relationship between Mr Stewart and the plaintiff was stronger than it had ever been. There were clear feelings of affection and love expressed by the deceased to his daughter. 40 In her affidavit of 18 August 2003 Mrs Muriel Lloyd-Williams deposed that after the second Christmas visit Mr Stewart told her that he was taken into Mr Mayfield's office and asked a lot of personal questions about his finances. She states that Mr Stewart said that the Mayfields tried to get him to make a will and that he was unimpressed by their actions. He also said that Mrs Stewart had been treated shabbily and he had no intention of ever going back again. I do not accept this evidence. It is necessary now to say why I found the plaintiff generally credible, but Mrs Muriel Lloyd-Williams to be unreliable. 41 There were occasions in the plaintiff's evidence where she was shown to have embellished or exaggerated events. I thought the most significant of these was her evidence in paragraph 59 of her affidavit of 20 April 2003 where she stated that in the 1990's her father and Mrs Stewart started making trips from Sydney to Oakleigh to see her and her family. Her affidavit continued "as time went on and they reduced their overseas travel, they spent more time at "Oakleigh". They would stay for between four and six weeks over most Christmas periods". I think that paragraph of the affidavit was intended to convey an impression of more frequent and longer lasting contact between the plaintiff and her father than was the fact. Mr and Mrs Stewart stayed twice at Oakleigh for periods of two or three weeks. In cross-examination the plaintiff readily accepted that the affidavit gave a misleading impression. Notwithstanding the exaggeration in her affidavit, I was on the whole favourably impressed by the plaintiff. I thought she gave her oral evidence honestly. Accordingly I have generally accepted her evidence. 42 Mrs Muriel Lloyd-Williams was 82 when she swore her affidavit and 83 when she gave oral evidence. I think her age coupled with her dislike for the plaintiff has adversely affected the accuracy of her recollection. There is a number of respects in which her affidavit does not ring true. She said that the deceased took both his daughters from Melbourne to Sydney in 1954 and that the plaintiff initially stayed with her sister Iris and then with Mr Stewart. She says that the plaintiff went to school at Penrith and then to a local public school near Earlwood, where Mr Stewart had bought a house in 1954. She described the plaintiff as a troublesome twelve year old, who was returned by her father to her mother when she was fourteen because she was insolent and gave endless trouble. The plaintiff denied living with her father at this time or going to school in Sydney. She and her mother both swore that she lived with her mother in Melbourne at this time. There is corroborative evidence showing that in 1954, when according to Mrs Lloyd-Williams the plaintiff was living in Sydney, being troublesome, and attending school at Penrith or a local public school at Earlwood, she in fact was enrolled at McKinnon High School in Victoria. The school newsletter lists her as having attended the school in that year. I could attribute Mrs Lloyd-Williams' mistake about where the plaintiff was living between 1954 to 1956 to frailty of memory. But her evidence that the deceased described the plaintiff at this time as living with him and as being insolent and troublesome to himself and his housekeeper, was not due to frailty of memory. I think it was born of antagonism or dislike. 43 Mrs Lloyd-Williams said that when the Olympic Games were held in Melbourne, the plaintiff and her sister remained in Sydney whilst Mr Stewart went to Melbourne for the Olympics. However the plaintiff says that during the Olympic Games she was living with her mother in Melbourne and her father came down and took her to the Games. She has three photographs of herself at the Olympic Games when she was 14 which she says were taken by her father. The person in the photographs is recognisably the plaintiff and I believe her version of events. Mrs Muriel Lloyd-Williams refused to countenance the suggestion that she might have been in error. 44 In paragraph 32 of her affidavit Mrs Muriel Lloyd-Williams said that the deceased told her after the visit to Oakleigh over Christmas 1996 that Mrs Stewart had been treated shabbily and he had no intention of ever going back there again. I cannot conceive that Mr Stewart would have made that statement but a few months later explained to the plaintiff and her husband that he and his wife would not be able to go down to Cavendish for the 1997 Christmas because of their extended overseas trip, but that "God willing we would be down next year" and invited the Mayfields to visit him. 45 In her oral evidence Mrs Lloyd-Williams described her brother as being very conservative and very formal. The photographs which were Exhibit BIM8 and the correspondence which is exhibit BIM9 are inconsistent with that depiction of Mr Stewart. 46 I do not consider Mrs Muriel Lloyd-Williams to be a reliable witness. I think her testimony was coloured by dislike of and antagonism towards the plaintiff. 47 The plaintiff and Mr Mayfield both gave evidence that when Mr Stewart visited Oakleigh over the 1996 and 1997 New Year, Mr Stewart said that he had made a lot of money from shares and that the plaintiff would be the main beneficiary of his estate. The plaintiff said that he told her that he wanted his wealth to be passed on to her so that it would maintain the family for generations. It is not inherently unlikely that the topic of inheritance would have arisen at least on the second visit. I am not satisfied that the deceased said that the plaintiff would be the main beneficiary of his estate. His wife, who was about 4 years his junior, was still living. He had another daughter whom he had brought up, even though there is some evidence that he disapproved of her conduct in separating from her first husband. Nonetheless I accept that Mr Stewart contemplated that the shares which he had acquired would form part of his estate and that Mrs Mayfield and indirectly through her, her children and grandchildren, would obtain an unspecified benefit from his estate and those shares in particular. 48 That that was his intention is corroborated by the evidence of Mr John Bartlett who knew Mr Stewart from the 1970's through their participation at Masonic Lodge meetings and who became quite familiar with Mr and Mrs Stewart over the last two years of Mr Stewart's life. Mr Bartlett gave evidence by affidavit, upon which he elaborated orally, of being present at the Stewart's house in Earlwood in November or December 1999 when there was a news item on the television or radio about an increase in the value of Commonwealth Bank shares. Mr Stewart was reading the business pages of the newspaper at the time. Mr Stewart said that the Commonwealth Bank shares had gone to $23.30; that he had earmarked the shares for the plaintiff; and that the plaintiff would never want again for the rest of her life. Mr Stewart told Mr Bartlett that he had 10,000 Commonwealth Bank shares, a statement about which Mr Bartlett was understandably sceptical. In fact at his death he and Mrs Stewart jointly owned 105,000 Commonwealth Bank shares. I accept Mr Bartlett's evidence about these matters. 49 The defendant claimed that the circumstances surrounding the death of the plaintiff's sister Judith reflected upon the plaintiff's relationship with the deceased. Judith was admitted to hospital in Melbourne in August 1998 and died suddenly on Thursday 13 August 1998. Mrs Muriel Lloyd-Williams gave evidence to the effect that the deceased did not learn of his daughter's death until told about it by the plaintiff three weeks after the funeral, a circumstance which made him angry with the plaintiff. The plaintiff gave evidence that after getting a call from her half-sister, Teree Ann Sutterby, that Judith was in a serious condition she and her husband drove to the hospital in Melbourne. The plaintiff deposed that she was shocked at her sister's condition, and immediately rang her father and told him that Judith was in a coma and dying in hospital. The plaintiff's evidence in this respect was corroborated by Teree, by her mother, Mrs Irene Holschier, and by her husband. 50 Judith died the following day. The plaintiff said that she again rang her father from the hospital to inform him of that fact. The funeral was arranged for the following Monday, 17th August 1998. On either the Friday or Saturday the plaintiff rang her father a third time to see how he was and tell him about the funeral arrangements. He said that his Lodge had said a prayer for Judith on his behalf, but he did not think he would be up to going to the funeral. 51 The telephone accounts of the plaintiff's mobile phone were produced in evidence. They did not show that she made any calls on that phone to her father over this period. The plaintiff's explanation was that as to at least one of the calls within the hospital, she believed she was not allowed to use a mobile phone and that she made an interstate call on the hospital's landline. She maintained that on another occasion or occasions she used somebody else's phone. This is not inherently improbable. I do not think the plaintiff or her half-sister who gave oral evidence on the topic were lying. I do not think that this incident resulted in an estrangement between the plaintiff and her father. 52 On Saturday August 15 1998 and Monday August 17 1998 notices were placed in the Herald Sun newspaper of Judith's death from members of her family and friends. The notices made no mention of Judith being Mr Stewart's daughter. Nor was there a notice from her father. It is not possible to say who placed the notice from the family in the newspaper of 15 August. I infer in relation to the notices on 17 August that Mrs Irene Holschier placed one of them in which she referred to Judith as her daughter and made no mention of Judith's father. The plaintiff placed a separate notice in memory of her sister which referred to her own family members. There could have been no intended slight on her father from the terms of the notice placed by the plaintiff. I do not find that the newspaper notices are of assistance in deciding whether or not the plaintiff spoke to her father at the time of Judith's death, and if she did not, whether her father was later justifiably angry. For the reasons I have given I am satisfied that she did telephone her father as she has deposed to. 53 The plaintiff and Mr Mayfield visited Mr & Mrs Stewart in Earlwood in August 1999 and again in September 1999. I infer that this was on their way to and from Noosa. 54 Mr Stewart was admitted to hospital for surgery in October 1999. The plaintiff said that she telephoned her father and offered to come up and help look after him. Her evidence was that Mr Stewart said that that was not necessary, that John Lloyd-Williams (his nephew) was coming up to stay for a holiday and would be able to help him and that he would see the plaintiff at Christmas. I accept that evidence. The defendant submitted that if there were a close relationship, the deceased would have been eager to accept the plaintiff's offered assistance. He had however seen her in August and September and expected to see her at Christmas. I do not think Mr Stewart's acceptance of his nephew's proffered help indicates that his relationship with the plaintiff was cold or distant. 55 Mr Stewart died on 31 December 1999. 56 There was a good deal of evidence about friction between Mrs Muriel Lloyd-Williams and the Mayfield family at the time of Mr Stewart's funeral. Mrs Stewart, then 81, was ill at the time and in shock. Mrs Muriel Lloyd-Williams said that the plaintiff showed no compassion to Mrs Stewart. The plaintiff was distressed to see that Mrs Lloyd-Williams and two of her children had taken the front pew of the funeral service next to Shirley. The Mayfields thought that Mrs Muriel Lloyd-Williams had taken charge of Mrs Stewart. 57 The plaintiff was cross-examined about her relationship with Mrs Stewart and about the events following the funeral. These were relevant circumstances under s 9(3)(b) and (c) of the Act. The plaintiff claimed that she had a warm and loving relationship with Mrs Stewart. Cross-examination sought to establish that that was not the case. I understood the questions to go primarily (although not solely) to the plaintiff's credit. Two things in particular were put in cross-examination of the plaintiff about her relationship with Mrs Stewart at this time. The first was that in her affidavit of 21 October 2003 the plaintiff said that she arrived with her husband and daughter Imogen at Mrs Stewart's home the day before the funeral. The funeral took place on 6 January 2000. It was established by reference to telephone records that the plaintiff was in Sydney by 3 January 2000. It was therefore suggested that she waited for two nights before making face-to-face contact with her father's widow; something that would be inconsistent with their having a warm relationship. The plaintiff's evidence in cross-examination about this issue was somewhat confusing. She said that she saw Mrs Stewart as soon as the Mayfields arrived but she also said that she couldn't remember. The second point made in cross-examination was that just before the plaintiff left Sydney to return home to Victoria she asked Mrs Muriel Lloyd-Williams if she knew the name of her father's solicitor and stated that she would like to see the will before she went home. Mr Mayfield also asked Mrs Muriel Lloyd-Williams who Mr Stewart's solicitor was and told her that the plaintiff wanted to know where the will was before they went home. According to both the plaintiff and Mr Mayfield they were rebuffed by Mrs Muriel Lloyd-Williams who was staying with Mrs Stewart. A solicitor with whom the Mayfields were staying, a Mr Stephenson of Lane and Lane, wrote a letter on 11 January 2000 demanding a copy of Mr Stewart's last will and threatening action if the demand was not satisfactorily responded to within ten days. I do not regard the plaintiff as responsible for the tone of the letter. It is clear that relations between the Mayfields and Mrs Lloyd-Williams at this time were antagonistic and that the former regarded Mrs Stewart, who was ill at the time, as being under Mrs Lloyd-Williams' control. That, I think, is the principal explanation for the Mayfields'demand to see the will. I do not think that the plaintiff was exaggerating when describing her relationship with Mrs Stewart or her father. 58 Mrs Muriel Lloyd-Williams stayed with Mrs Stewart for three and a half months after the funeral. On 19 January 2000 Mrs Stewart made a will in which she appointed Suzy Lloyd-Williams, Mrs Lloyd-Williams' daughter, her executrix and left her all her estate. 59 According to Mrs Muriel Lloyd-Williams, Mrs Stewart dealt with the deceased's papers. No will was found. On 7 March 2001 letters of administration were granted to Mrs Stewart. 60 Mrs Stewart died on 7 May 2001. Probate of her will was granted to the defendant on 21 September 2001. The Oakleigh Farm and Talasea 61 In 1998 Imogen and Christopher Dinges left Tuloona and purchased a property known as Talasea which is one property removed from Oakleigh. They did so with the financial assistance of Mr & Mrs Mayfield and Christopher's parents, together with their own savings. The Oakleigh partnership (to which I refer below) borrowed $100,000.00 to assist in the purchase of Talasea. $80,000.00 of that debt has been repaid. 62 Oakleigh and Talasea are farmed by the plaintiff and her husband, their daughter and son-in-law Imogen and Christopher Dinges, and their son Bradley. That simple statement does not reveal the complexity of the business arrangements for the farming of the properties. 63 Oakleigh is now 2,767 acres (or around 1,120 hectares) in area. It has grown to that size over the years. The first acreage of about 600 acres was acquired by Mr Mayfield's father in 1929. Mr Mayfield grew up on the property. His father extended it in 1941 through the purchase of another 360 acres of adjoining land. There were further acquisitions in 1953. In 1965 Mr Mayfield made an agreement with his father and sisters that on the understanding that the land would pass to him on his father's death, he would pay his father an annuity equivalent to $6,000.00 per annum, which his father would invest and the investment proceeds would be left to be shared between his sisters after his death. He also agreed to pay the premiums on a policy of life insurance taken out on his father's life. Subsequently Mr Mayfield purchased another 403 acres in 1966 and another 181 acres in 1967. In 1969 and 1974 his father transferred his land to Mr Mayfield. In 1982 Mr Mayfield purchased another 606 acres. Another 606 acres was purchased in 1992 by Mr & Mrs Mayfield jointly. As a result of these various acquisitions 2,161 acres of Oakleigh is owned by Mr Mayfield. He and the plaintiff own 606 acres jointly. Oakleigh (that is, the property comprising 2,767 acres), has been valued as at 1 May 2004 at $3,043,700.00. That valuation has been accepted by both parties for the purpose of these proceedings. There is no separate valuation of the 606 acres of which the plaintiff is a co-owner. 64 The Talasea property, approximately 373 acres (151.1 hectares), is owned by Christopher and Imogen Dinges. Oakleigh and Talasea are worked as one farm by the Oakleigh partnership. 65 The Oakleigh partnership was formed in October 1989. The original partners were Mr Mayfield, the plaintiff, their children and Oakleigh Pastoral Co Pty Limited. Oakleigh Pastoral Co Pty Limited was incorporated on 25 September 1989. Mr Mayfield holds 45,747 A class ordinary shares in that company, the plaintiff holds 22,874 B Class ordinary shares and the children own C, D and E class shares. All classes of shares are entitled to participate in profits of the company distributed by way of dividend. Only A and B Class shares are entitled to participate in the distribution of capital profits by way of dividend or on a winding up. Participating shareholders are entitled to a distribution of income or capital as the case might be according to the amount paid up on each of the shares. 66 Originally, the partnership profits were divided into thirty-two parts. Oakleigh Pastoral Co Pty Limited had a 75% share in the partnership. Mr Mayfield had a 12.5% share, the plaintiff had a 6.25% share and the children held the balance. In 1998 changes were made to accommodate Imogen and Christopher Dinges. A superannuation fund was established. A discretionary family trust was also established. The trustees of the trust are Mr Mayfield, the plaintiff, Bradley Mayfield, Imogen Dinges and Christopher Dinges. Mr Mayfield and the plaintiff jointly have the power at any time to remove any trustee and appoint new trustees. The trustees have a discretion in relation to the distribution of income between the beneficiaries. The capital of the trust fund is to be distributed on the "distribution date" between such of the beneficiaries as the trustees determine. They have a discretion to appoint any date within eighty years as the distribution date. As is customary in such instruments, there is a wide range of beneficiaries. It includes the plaintiff and her husband, their children and their spouses, and their grandchildren. 67 On 15 June 1998 the Oakleigh partnership deed was amended so that the partners became the Oakleigh Pastoral Co Pty Limited as to a 10% share and the trustees of the Mayfield family trust, in that capacity, as to a 90% share. 68 Hence the plaintiff's entitlement to share in the profits from the farming of Oakleigh and Talasea arises in her capacity as a discretionary object of the Mayfield family trust and as a shareholder of Oakleigh Pastoral Co Pty Limited. 69 One of the reasons for the establishment of this structure was to permit the minimisation of tax and the maximisation of allowances between members of the family so that the burden of taxation of the family overall would be minimised. That observation only emphasises that the arrangements are intended to operate according to their tenor. In considering what provision ought to be made for the proper maintenance and advancement in life of the plaintiff, the legal edifice cannot be ignored. (45 Flers Avenue Pty Limited v Morgan (1987) 5 ACLC 222 at 225). 70 The partnership operates an overdraft account with the National Australia Bank. The plaintiff and her husband and the Oakleigh partnership have minimal cash resources. Purchases for everyday living expenses are made on credit cards which are paid by the Oakleigh partnership. Where the expenses paid by the partnership are for the private purposes of family members and are not business expenses associated with the running of the farms, the amounts paid by the partnership are debited to the loan accounts which family members have with the partnership. 71 According to the draft balance sheet of the Oakleigh partnership as at 30 June 2003, the plaintiff and her husband owed the Oakleigh partnership $243,666.14 on loan account. 72 Ninety per cent of the annual profits of the partnership are earned by the trustees of the Mayfield family trust. Ten per cent of those profits are earned by Oakleigh Pastoral Co Pty Limited. The profits earned by the trustees are fully distributed each year to the beneficiaries. No cash changes hands between the partnership and the trustees, or between the trustees and the beneficiaries. Instead distribution of trust income to the beneficiaries is accounted for by crediting their accounts with the trustees. By the same token the trustees stand in credit with the Oakleigh partnership. 73 The draft accounts for Oakleigh Pastoral Co Pty Limited as at 30 June 2003 show that each of the family members is a creditor of the company in various amounts. The plaintiff is a creditor in the amount of $15,600.00. The company's assets consist entirely of its investment in the Oakleigh partnership, although according to the draft accounts it stands as a debtor to the partnership in the amount of $75,254.35. 74 The draft financial statements of the Mayfield family trust as at 30 June 2003 provide that the "trust" received a gift in that financial year of $912,232.03. That item relates to the release of credit balances in the adult beneficiaries' accounts with the trustees, the release of loans from the plaintiff and her husband of $471,255.00 and the release of a loan from Bradley Mayfield of $16,766.00. In the case of the plaintiff, apart from the release of her interest in the "loan" from her and her husband to the trustees, there is an entry recording a "transfer to corpus" of $119,244.67. According to the family's accountant, Mr Struck, this represented the opening credit balance in her beneficiary account which, the accountant said, was released. The reason for the releases (or "gifts" as they are called in the draft accounts) was to "clean up" the accounts of the trusts because banks did not like having loan or beneficiary accounts with large credits. 75 The Mayfield family is happily ignorant of these complexities. It is all left to their accountant, Mr Struck. 76 The profitability of the farm is reflected in the accounts of the Oakleigh partnership. Because the Oakleigh partnership not only pays the expenses of the farm but also the private debts of the family members, there is the potential for the partnership accounts to understate the profits of the farming operations by including non-business expenditure as partnership expenses. However I do not find, and it was not suggested, that this has occurred. Imogen Dinges analyses the credit card payments and, I infer, the payments made by partnership cheque, between farm expenditure and private expenditure. She keeps a computer record of the partnership expenses. The allocation of expenses between the private expenses of the individuals and business expenses is reviewed by the accountants. No suggestion was made that expenses have been inappropriately allocated. Some expenditure is described as private and it is not included as a partnership expense. The description of the other expenses suggests that they are all appropriate business expenses to be taken into account in assessing the net profits of the farming venture.

77 The net income of the Oakleigh partnership since 2000-2001, its distributions to the partners and the trust income distributed to the plaintiff have been as follows:

2000-2001 2001-2002 2002-2003 2003-2004 (Estimated) Oakleigh Partnership $91,116.00 $332,963.00 $369,251.00 $357,962.00 Distribution to Family Trust $82,049.00 $299,667.00 $332,335.00 N/A Distribution to Oakleigh Pastoral Co Pty Limited $ 9,117.00 $ 33,296.00 $ 36,916.00 N/A Trust Income Distributed to Plaintiff $20,425.00 $ 87,045.00 $66,105.00 N/A

78 Whilst the partnership has been trading profitably, it must be borne in mind that the profits have to support three families. 79 Oakleigh Pastoral Co Pty Limited has not declared a dividend. It could not pay a dividend without borrowing. The distribution of trust income to the plaintiff has been made by crediting her beneficiary's account in the trust with the amounts distributed, thereby acknowledging the debt owed by the trustees to her. Save for the credit for the 2002-2003 year, the debt owed by the trustees to her in respect of previous distributions of income has been released. The Plaintiff's and Mr Mayfield's Assets and Liabilities 80 The plaintiff's assets consist of: a. a joint interest in 606 acres of Oakleigh (comprising about 22% of the total acreage); b. a superannuation entitlement with the Mayfield superannuation fund which at 30 June 2003 was valued at $1,283.19;

d. a loan to Oakleigh Pastoral Co Pty Limited which at 30 June 2003 totalled $15,600.00;

e. shares in Oakleigh Pastoral Co Pty Limited. These shares have not been separately valued except as a proportion of the net assets of the company. According to the company's draft balance sheet at 30 June 2003 it held net assets at that date of $145,934.00. The company's net assets consist of its equity in the Oakleigh partnership. The company has not paid a dividend. It could not do so without borrowing. If it were wound up and there was $145,934.00 to be distributed to shareholders entitled to participate in a winding up, the plaintiff would be entitled to receive $48,645.00. (She holds a third of the shares entitled to participate in a winding up). Her shares however must be worth less than this sum;

f. a debt owed by the trustees of the Mayfield family trust of $66,105.00 in respect of the distribution of income for the 30 June 2003 financial year. A previous debt of $119,245.00 has been released earlier this year as has a debt of $471,255.00 owed by the trustees to the plaintiff and Mr Mayfield; and

g. her rights as a discretionary object of the Mayfield family trust and as one of five trustees and one of two joint appointors of the trust. Those rights have value as evidenced by the distributions of income made to her from the trust, but it is not possible to fix the value as a particular sum. She has no cash or credit with a bank. 81 The plaintiff's liabilities, including her contingent liabilities, are as follows:

a. As at 31 March, 2004 she had a credit card debt to the National Australia Bank of $9,031.00. It is probable that this has since been paid by the Oakleigh partnership, thereby increasing her liability to the partnership;

b. she owed the Australian Taxation Office $12,071 as a PAYG instalment which was due for payment on 28 April, 2004. It is probable that this has been or soon will be paid by the Oakleigh partnership. c. as at 30 June 2003, according to the draft financial statements of the Oakleigh partnership, she and her husband were jointly indebted on their loan account with the partnership in the sum of $243,666.14;

d. she is liable to Christopher and Imogen Dinges for $30,000.00 advanced by them towards the costs and expenses of the litigation, and to the Oakleigh partnership for $437,001.12 for moneys paid for or on account of the costs and expenses of litigation. It is likely that $114,273.74 of this debt is included in the figure of $243,666.14 owing by her and Mr Mayfield to the Oakleigh partnership at 30 June 2003;

e. she has a contingent liability up to $1,085,000 as a guarantor of the Oakleigh partnership's debts to the National Australia Bank. Her husband is also a guarantor. The debts are secured over Oakleigh. On 6 May 2004 the Oakleigh partnership owed $377,121.61 on overdraft account and $465,000.00 plus any outstanding and unpaid interest on a bill facility. But for the payment by the partnership of the costs of the litigation, its current account with the National Australia Bank would be substantially in credit. 82 Mr Mayfield's assets are as follows:

a. apart from the plaintiff's interest as co-owner of 606 acres, he owns all the land that comprises Oakleigh;

b. as at 30 June 2003 he had a superannuation entitlement of $63,786.23 with the Mayfield superannuation trust;

c. he holds shares in listed companies valued at $10,657.00 as at 3 May 2004;

e. as at 30 June 2003 he was owed $71,386.00 by Oakleigh Pastoral Co Pty Limited according to its draft accounts;

f. he holds two thirds of the shares entitled to participate on a winding up of Oakleigh Pastoral Co Pty Limited;

g. he is owed $66,105.10 by the trustees of the Mayfield family trust in respect of the income distribution for the twelve months to 30 June, 2003. He has released a previous debt of $127,577.31 and a debt of $471,255.00 previously owed by the trustees to him and the plaintiff; and

h. he has the same rights as the plaintiff as an appointor, trustee and discretionary object of the Mayfield family trust. 83 According to the draft accounts of the Oakleigh partnership for the twelve months to 30 June, 2003, at that date Mr Mayfield and the plaintiff were together indebted to the partnership in the sum of $243,666.00. He had an additional and separate debt to the partnership of $535,000.00. Mr Mayfield is also contingently liable to the National Australia bank as a guarantor of the debts of the Oakleigh partnership to the Bank. 84 In summary therefore the plaintiff and her husband have very little set aside in superannuation. Oakleigh is predominantly owned by Mr Mayfield. The income of the farms in the last three years has been sufficient to support three families and partly fund the costs of the litigation, with the balance of those costs being funded by borrowing on overdraft. The plaintiff and her husband owe money to the Oakleigh partnership, but in turn are owed money by the trustees of the discretionary trust and the company. It is unlikely that any of the debts between the individuals, the partnership, the company and the trustees will be called up. Plaintiff's Claim for Provision 85 The plaintiff said that if she obtained a provision under the Family Provision Act, 1982 (NSW) she would use the money to: pay out or reduce the family's indebtedness to the National Australia Bank; upgrade infrastructure on Oakleigh, such as the fences, dams and farm equipment; perhaps employ a farm labourer; purchase a new car for herself and her husband; and generally use the money to make life a little easier for her and her husband as they grow older. Evidence was led as to the need for extensive improvements to the farm and as to some of the costs of those improvements. 86 One of the constraints upon the provision which the Court can order which is apposite to this case is that the provision must be for the maintenance, education or advancement in life of the applicant. (Family Provision Act, 1982, s 7). If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. (Re Buckland Deceased [1966] VR 404 at 412; Hughes v National Trustees Executors and Agency Co. of Australasia Pty Ltd (1979) 143 CLR 134 at 147; Goodman v Windeyer (1980) 144 CLR 490 at 498, 505). But section 7 does not permit orders to be made to provide for the support of third persons whom the applicant, however reasonably, wishes to support. (Re Buckland Deceased at 412; Kleinig v Neal [1981] 2 NSWLR 532 at 537.) 87 It is understandable that the plaintiff should wish to obtain a provision which would primarily benefit the Oakleigh partnership and only indirectly benefit her. She has devoted her life to her family and the farm. However I cannot assess what is required for her proper maintenance and advancement in life in this way. That is not to say that there will be any constraint on how she can use the provision which I will order. If she wishes to give or lend the money to other members of her family that will be a matter for her. However I must assess what is proper provision by reference to her need for proper maintenance and advancement in life, not the needs of the Oakleigh partnership or her husband and children. 88 Perhaps recognising this, in final submissions Mr M Aldridge SC, who appeared with Mr G Moore for the plaintiff, submitted that provision should be made for:

(a) a sum sufficient to discharge the plaintiff's debts, including the debts of the Oakleigh partnership of which she was a guarantor, or at least her share of those debts;

(b) an amount to provide a house in Hamilton for the plaintiff and her husband when her husband retires from active work on the farm;

(c) an income to provide for the expenses of the plaintiff and her husband for when they are no longer working on the farm or if there is insufficient farm income to support them; and

(d) an amount to provide a capital fund to meet contingencies. 89 I shall deal with each of these in turn. At the end of the day however all of the financial needs of the applicant have to be taken into account and considered by reference to the other factors referred to in s 9(3) of the Act and in Singer v Berghouse (1994) 181 CLR 201 at 209-210. The question of what is proper provision is not arrived at by adding up all of the identified financial needs. (Hyland v Burbidge [2000] NSWSC 12 at [56]). Nor does it follow that if I decide it is inappropriate to make a specific provision in respect of one identified head of claim that any identified financial need, even a contingent need, in relation to that claim becomes irrelevant to the final assessment. The plaintiff's debts and contingent liabilities. 90 I have summarised the plaintiff's debts and contingent liabilities in paragraph 81. Her greatest debt is to the Oakleigh partnership and Christopher and Imogen Dinges for moneys paid by them at her express or implied request and for her benefit in funding the costs of this litigation. It would not be appropriate to make an order for provision which would in effect give her her costs on an indemnity basis irrespective of whether they were properly incurred, and whether or not she is ultimately entitled to an order for costs. 91 The Oakleigh partnership is indebted to the National Australia Bank on overdraft account in the amount of $377,121.00. The plaintiff is a guarantor of that liability. But for the moneys paid by the Oakleigh partnership towards the legal expenses of the plaintiff in bringing the proceedings, the Oakleigh partnership would have a substantial credit balance on current account. If the plaintiff is entitled to an order for costs, that order should go at least a substantial way to extinguishing the Oakleigh partnership overdraft debt. 92 I have previously noted that the plaintiff's private debts on credit cards have been met by the partnership such that she becomes a debtor of the partnership. If the partnership were wound up, it appears from its 30 June 2003 accounts that its net assets would pass to the trustees of the Mayfield family trust. The plaintiff has released a substantial part of the debt owed by the trustees to her. She might or might not participate as a beneficiary on a distribution of capital by the trustees. It would not be right to make a provision which would permit her to pay the debt which she owes to the Oakleigh partnership. Mr Struck, the trust's accountant, said that it was unlikely that any of the debts between the members of the family, the partnership, the trustees of the trusts, and Oakleigh Pastoral Co Pty Limited would ever be required to be paid. The plaintiff did not seek a provision which would pay her debt to the Oakleigh partnership arising from its meeting her private expenses other than legal costs. I can leave that debt out of account. 93 It is likely that the credit card debt of $9,031.00 owed by the plaintiff to the National Australia Bank and her debt for her PAYG tax instalment has been or will shortly be paid by the Oakleigh partnership. I do not think it appropriate to make any separate provision in relation to those debts. 94 The plaintiff, in her capacity as trustee of the Mayfield family trust, is one of the members of the Oakleigh partnership with a personal liability to the National Australia Bank under the bill facility. She is also a guarantor for the whole of the amount of the debt of $465,000.00 plus interest. If she were called upon to pay the debt she would be entitled to contribution from the other trustees and from Oakleigh Pastoral Co Pty Limited. It is improbable that she will ever be called upon to pay that debt from her own pocket either as borrower or guarantor. The Oakleigh partnership has serviced and reduced the debt in accordance with its arrangements with the National Australia Bank and still derived substantial profits in the last three years. It appears the facility is to be repaid over a period of about ten years and that principal repayments are due of $20,000.00 in November, 2004 and $40,000.00 per annum from November 2005. There have been debt reductions of $80,000 between 2000 and 2003. The bank is satisfied of the partnership's ability to service the debt going forward. Even though a provision which discharged or reduced the partnership's debt could arguably be characterised as one for the advancement in life of the plaintiff, its primary function would be to advance the interests of the partnership. I do not think such a provision would be one which was proper for her maintenance or advancement in life. Accommodation, Income and a Fund for Contingencies and Conveniences of Life 95 In their present circumstances the plaintiff and her husband see no prospect of their being able to leave the farm. The plaintiff's opinion was that for them to be able to move away from Oakleigh or entirely to retire from work on it, the property would have to be sold. Neither the plaintiff nor her husband is prepared to do this. It is their intention that the property be left intact so that it can be passed on to the next generation. However, if money were available for the purpose the plaintiff would like to be in a position to be able to move to Hamilton when Mr Mayfield retires from full-time active work on the farm. Mr Mayfield is presently 66. He has suffered from lower back problems for a number of years. In 2003 he suffered a number of broken ribs and other bones in an accident which exacerbated the difficulties of his lower back. Mr Mayfield said that ultimately he would slow down and pass on the farm to his children but that he had not yet been in a position to work out how that should be done. At the moment, as it takes the efforts of each of Mr Mayfield, Christopher and Bradley to work the farm, he does not presently see how he can slow down. 96 A few years ago there was a discussion between Mr Mayfield and his accountant, Mr Struck, about transferring the Oakleigh land into a "land trust". Mr Struck has recommended that the land be transferred to trustees of a discretionary trust which would be similar in its structure to the Mayfield family trust. Mr Struck contemplated that the land would be transferred for nominal consideration. Part of the reason for doing this is for what Mr Struck called "succession planning", which includes minimising the prospect of litigation in relation to Mr and Mrs Mayfield's estates. Part of the reason is to obtain the involvement of the whole family in the ownership of the farm as well as its operation. 97 However in about 2002 Mr Struck was instructed not to proceed with planning for the transfer of the land to trustees whilst the current litigation was still pending. 98 Whether the land is transferred to the trustees of a discretionary family trust, or whether it is passed to some or all of Mr & Mrs Mayfield's children on their death, or whether it is transferred to the children in some other way, it is the plaintiff's and her husband's intention not to sell the land unless, perhaps, they are compelled to do so by economic considerations such as the need to repay the bank's debt. It is not their intention to sell all or any part of the land in order to obtain capital which they can use to fund their retirement. They regard such a sale as being a breach of faith towards their children. 99 I was referred to a decision of the Administrative Appeals Tribunal (Re Williamson v Repatriation Commission (1986) 10 ALD 19 at 22) which considered the position of families whose livelihoods were dependent upon farming or grazing. The Tribunal said: "Whatever may be the formal arrangements between parents and their children, it is common that and expected that farming properties will be passed from parent to son and from son to grandson. Frequently, this must be achieved without there being any financial benefit to the parent arising from the disposition of the farm to the younger generation. Of necessity, the younger generation will often not have the financial resources required to purchase the property from the parent." 100 There is nothing unreasonable in the plaintiff's and her husband's intentions. 101 Nonetheless, Mr J Wilson SC, in a thorough and helpful argument, submitted that the plaintiff had secure accommodation on the farm and a reasonably assured income from the farm. Her debts would be paid by the partnership. He referred to the net profits of the Oakleigh partnership for the last three years and pointed out that they had been derived notwithstanding that the property was suffering a severe drought, and notwithstanding that the partnership was servicing a large debt which was incurred in order to fund this litigation and which inhibited the expenditure on farm improvements. He submitted that the plaintiff had no need for provision beyond a comparatively modest capital fund to meet contingencies. She had no need for a provision which would pay her debts, provide accommodation, or provide an income, as these were already provided by the Oakleigh partnership. 102 In support of this submission I was referred to the decision of Re Buckland deceased [1966] VR 404 where Adam J said at 415: "I consider the proper conclusion to be drawn from the authorities is that the court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance." 103 An appeal from the judgment of Adam J was dismissed by the High Court on 10 May 1966. The High Court said that it could find no significant error of fact or of law in the reasons for judgment of the trial judge, nor could it conclude from the nature and the amount of the provision ordered that in the circumstances of the case, including the amount of the testator's estate, that the order stemmed from some misconception of fact or from some error or misapplication of principle on the part of the trial judge. (Buckland v Trustees Executors and Agency Co. Limited (1966) 40 ALJR 164). 104 In Re Buckland, deceased, Adam J was applying s 5 of the Administration and Probate Act 1958 (Vic) which gave the Court jurisdiction to make provision where the distribution of an estate was such "as not to make adequate provision for the proper maintenance and support of the deceased's… children". (At 408-409). 105 Immediately before the passage quoted Adam J had referred to the judgment of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478 where Lord Romer said (at 478): "The amount to be provided is not to be measured solely by the need of maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration. …….. Where, therefore, the testator's estate is a large one the Court would be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small." 106 It would be a mistake to read the quoted passage in Re Buckland that, whatever the size of the estate, the Court's jurisdiction "is limited by the claimant's need for maintenance and support", as indicating that the size of the deceased's estate or notional estate is an irrelevant consideration in determining what provision for maintenance etc is proper. The need a claimant must demonstrate is a need for "proper" maintenance, education and advancement in life. 107 Bosch's case established and Singer v Berghouse (1994) 181 CLR 201 at 209-210 reaffirmed that the size of the deceased's estate is a relevant matter to be taken into consideration in determining what provision for maintenance or advancement in life is proper. In Singer v Berghouse (1994) 181 CLR 201, Mason CJ and Deane and McHugh JJ said that the first stage in the two-stage process called for by the Act is an assessment of whether: "the provision (if any) made was inadequate for 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 had legitimate claims upon his or her bounty." (at 209-210) 108 In Re Buckland Adam J said at 411, in a passage subsequently cited with approval by the Court of Appeal in O'Loughlin v O'Loughlin [2003] NSWCA 99 at [22], that proper maintenance denoted maintenance to be measured, not by a standard considered appropriate to the circumstances of the dependant, but by what in all of the circumstances of the particular case was proper for the testator to have provided as maintenance for the dependant. What was proper was to be tested by reference to a provision which in all the circumstances satisfied, but did not exceed, the requirements of moral justice in regard to the purposes of provision for maintenance and support. 109 In Shearer v The Public Trustee; Hawke v The Public Trustee (Young J, (as his Honour then was) 23 March 1998 unreported, BC9801169) said: "Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own." 110 However there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That may be true as a very general statement. However cases are infinitely variable and what is proper maintenance and advancement in life depends on all the relevant circumstances. Examples of such provision are not hard to find, most notably in Re Buckland, deceased itself. There, where the estate was vast, the deceased's adult daughter was left by will, inter alia, a house and contents valued in November, 1964 at about £9,500.00 and an annuity of £3,500.00. At the testator's death, she was in receipt of an independent income and owned her own house worth about £8,000.00. As well as more than doubling the annuity, Adam J ordered the provision of a further £25,000.00 for the acquisition of a more substantial home should she desire it, or a seaside or country cottage or a prolonged overseas holiday (at 416-417). See also Ogden v Green [2003] NSWCA at [12]. 111 What is proper maintenance, education and advancement in life is not determined solely by reference to an applicant's financial circumstances, but by reference to all of the factors referred to in Singer v Berghouse. I do not understand Re Buckland to establish that in the case of an ample estate and a claimant who is comfortably off, the only provision for maintenance which can properly be made is a provision for contingencies. To do so would be to take too narrow a view of the circumstances to be taken into account in assessing what is proper provision for the applicant's maintenance, education and advancement in life. Nor would it reflect the provision ordered in that case. 112 If I am satisfied that the "proper maintenance" or "proper advancement in life" of the plaintiff, assessed having regard to all relevant factors, requires a provision that allows a capital fund from which to pay her an annuity, or to provide her with a house, or a sum for contingencies and the conveniences of life, or all three, then an order making such provision would be justified even if it were not necessary to meet her "needs" in the sense of necessities or requirements. 113 Having regard to all of the factors identified in Singer v Berghouse does not mean that the Court can rewrite a testator's, will or alter the rules for intestacy or transmission of property by survivorship, in order to do what the Court considers to be fair in the circumstances. The Court can only order the provision of what is proper for the maintenance, education or advancement in life of the applicant. This was the point emphasised in Re Buckland in the passage quoted in paragraph 102 above, where, in dealing with different statutory language, Adam J said that the provision had to come fairly within the conception of "maintenance and support". 114 In the context of the Act the expression "advancement in life" is not confined to an advancement of an applicant in his or her younger years. It is phrase of wide import. (McCosker v McCosker (1957) 97 CLR 566 at 575) The phrase "advancement in life" has expanded the concept used in the Victorian legislation which was considered in Re Buckland permitting provision to be made for the "maintenance and support" of an eligible applicant. However Adam J emphasised that in a large estate a more extravagant allowance for contingencies could be made than would be permissible in a small estate and still fall within the conception of maintenance and support. 115 Whatever may be the limits of "maintenance" and "advancement in life", the provision of accommodation, an income and a capital fund for contingencies falls within those concepts. The real question is whether "proper" maintenance and advancement in life requires a provision for the plaintiff's accommodation in Hamilton, an income independent of the income or means of support she might derive from the Mayfield family trust or the partnership, and a capital fund for contingencies or conveniences. 116 In deciding this question many factors have to be taken into account. Some of them I have already averted to. Others are set out below. 117 Mr Mayfield is now 66. He is not in the best of health. At some time he will have to "slow down".

118 Although the Oakleigh partnership has derived healthy profits over the last three years, the continuity of healthy profits is not assured. The recent profits are attributable to the current high prices for fat lambs. It is not possible to say that those prices will continue.

119 In considering whether the plaintiff's future income from the Mayfield family trust or support by loans from the partnership is reasonably assured, the level of debt of the partnership, and the need for substantial improvements to the farm have to be taken into account. They will both have a significant impact upon what the partnership can afford to pay to meet the expenses of or provide income to the plaintiff. At the moment the plaintiff and her husband draw no monthly cash sum from the partnership. Their expenses are paid. The two boys take a monthly draw of $700.00 per month. The improvements to the farm which have identified as being necessary include the following:

a) a new woolshed at an estimated cost of $25,000.00 to $50,000.00;

b) the construction of a laneway to permit the efficient management of the movement of sheep and cattle which will require approximately ten kilometres of fencing at a cost in the order of $45,000.00 to $50,000.00;

d) the construction of new dams and the cleaning and refurbishment of existing dams;

e) the replacement of farm machinery and equipment much of which is old;

h) the replacement over time of breeding stock. 120 If Mr Mayfield retires, then at least as the farm is presently structured, it will be necessary to employ one or more labourers to do the work which he currently does. The net income of the partnership would be reduced by the cost of employing new labour. Christopher Dinges expressed the opinion that if the property were "streamlined" over the next few years, so that it was easier to work, he believed that they would be able to make a good go of having the property support his family, Bradley and his family, and the plaintiff and her husband, as well as paying for hired labour. All of this is however necessarily speculative and depends on all the uncertainties which attend the business. Mr Aldridge SC for the plaintiff reminded me that only three years ago, the net profits of the partnership were $91,116.00 and this sum had to support three families as well as provide for the reduction of the principal owing to the National Australia Bank. 121 Mr Wilson SC for the defendant submitted that a provision of a capital sum to provide alternative accommodation and a secure income to the plaintiff would not be one for her proper maintenance and advancement in life. The argument was that the need for such a provision would only arise as the result of the plaintiff and her husband voluntarily alienating or surrendering their property. He submits that if the plaintiff and her husband wish to transfer Oakleigh to their children, or to trustees of a trust, whilst they are still alive, it is open to them to transfer the land on terms that the children, or the Oakleigh partnership, pay an annuity or capital sum or both to the plaintiff and her husband. He points to a similar arrangement which Mr Mayfield made with his father and sisters when he acquired Oakleigh in the 1960's. Christopher Dinges said that if the plaintiff and her husband moved off the property and it was transferred to the children or to the trustees, he would be prepared to provide an income from the property to support the plaintiff and Mr Mayfield in recognition of the fact that Mr Mayfield had built the property and business up over the years. However Mr Mayfield doubted that the farm could carry that cost with its present level of debt. I also have to take into account the uncertainty of the future income from the farming operations and also the probability that the financial needs of Imogen and Christopher and perhaps of Bradley and his wife will increase. The financial needs of Christopher and Imogen will increase as their children grow older. If Christopher and Imogen have more children or Bradley and Carla have children, their needs will increase further. 122 I also take into account that there will be little the plaintiff could do to prevent a "voluntary alienation" of Oakleigh from her husband to his children or to trustees. Most of the land is owned by Mr Mayfield. In any event, I cannot think that the plaintiff could reasonably be expected to stand out against such a decision having regard to the disharmony that she would cause. Of course it does not follow that because title to Oakleigh may be transferred during the lives of the plaintiff and her husband, that they would be required to leave the farm. That is unlikely. 123 However the question is not whether a provision securing alternative accommodation and an income for the plaintiff is necessary to meet her financial needs. It is rather whether such a provision is proper having regard to all the relevant circumstances. In that regard there are additional relevant factors to be taken into account. 124 They include the size of the notional estate which is in excess of $3,500,000.00. 125 Another relevant factor is that the only person who would be adversely affected by such a provision is the defendant. She holds the position described as "Deputy Director" of the "VRC Club" which I take to be a reference to the Victorian Racing Club. There is no evidence that she has any unmet financial need. She has inherited from Mrs Shirley Stewart an estate which on current values is in excess of $8,800,000.00. She is well provided for. 126 Another relevant factor is that Mr Stewart provided no support to his daughter during his life notwithstanding that she struggled for many years under conditions of some hardship to support her family. It was not until 1994 that she and Mr Mayfield were able to take what has since become an annual holiday to Noosa. This was notwithstanding that Mr Stewart's income was more than sufficient at least in his later years for him to have been able to provide such support. 127 Another relevant factor is the nature and quality of the plaintiff's relationship with the deceased. Although for many years the relationship was a distant one, in the later years of the Mr Stewart's life it became much closer. I accept that in those years it could be accurately described as a loving one. The plaintiff's earlier privations and the absence of a close relationship between father and daughter for much of their lives, are matters which would lead a "wise and just" testator, if he were making a will, to make a generous provision for the plaintiff. In my view that would be in accordance with community expectations. Indeed, it was the deceased's intention as I find it, which he expressed to Mr Bartlett, that after his death, the plaintiff should not want again and that the shares which he had acquired would be earmarked for her. The fact that there is no evidence that he did earmark the shares for the plaintiff by making a will which made provision for her, and I must assume he did not, does not detract from the evidence that it was his intention to do so. His death some weeks after his conversation with Mr Bartlett came as a surprise. 128 It is true that the plaintiff made no contribution, either of a financial nature or by the provision of services, to the acquisition, conservation or improvement of the deceased's property. (s 9(3)(a)(i)). She was in no position to do so. It is also true that her contributions to the welfare of the deceased (s 9(3)(a)(ii)) were principally confined to providing accommodation and hospitality on the two Christmas vacations, although I think the late awakening of a relationship with his daughter must have been a source of satisfaction to him. There is nothing in the character or conduct of the plaintiff before or after Mr Stewart's death which should disentitle her from a provision, or lead to a reduction in what would otherwise be ordered. 129 To establish that the plaintiff is not in financial need evidence was adduced that from 1994 the plaintiff and her husband have taken an annual holiday at Noosa, usually staying 4 weeks. In 2002 (when they stayed 6 weeks) they spent over $17,000.00 on airfares, accommodation, restaurants, clothing, presents and so on. In 2003 they spent $7,800.00. This expenditure was financed through the Oakleigh partnership. I do not think this evidence is of any particular assistance in deciding what provision ought to be made for the proper maintenance and advancement in life of the plaintiff. 130 The defendant disclaimed any reliance on the possibility that at some time in the future the plaintiff might receive property from a trust established for the Holschier family. Nor did the defendant seek to make a case that the plaintiff might inherit any substantial amount from her mother's estate. 131 Taking all of these factors into account I conclude that provision for the plaintiff's proper maintenance and advancement in life extends to providing her with a fund from which she can draw to purchase reasonable accommodation in Hamilton for herself and her husband when Mr Mayfield winds down his active labour on the farm. It should also be sufficient to provide her with a secure income which is not dependent upon a distribution from the Mayfield family trust or on the partnership continuing to meet her expenses. It should also include an amount to take into account other contingencies to which I will later refer. 132 Mr Horne, is a financial advisor residing in Hamilton. He provided a report upon which the plaintiff relied in these proceedings. He said that a reasonable estimate for housing in the Hamilton region could be $350,000.00. He described this estimate as conservative. It was based upon a local real estate agent's advice that a quality brick veneer residence on a small acreage, comprising three bedrooms and office or four bedrooms with modern fixtures and fittings, double garage and established gardens and surrounds, situated in a popular area, would command a market price of between $380,000.00 to $420,000.00. There is no other evidence about the cost of real estate in Hamilton. I am prepared to accept the estimate of $350,000.00 as being a reasonable allowance for a suitable property for the plaintiff in the Hamilton district, bearing in mind that the property should be large enough so that children or grandchildren and other relatives or friends could stay with the plaintiff and her husband. There is no evidence of the likely movement of property prices in Hamilton over the next few years. I must proceed on the basis that if $350,000.00 is invested it will be reasonably sufficient but not excessive for the purchase of such accommodation in a few years time. 133 Mr Horne said that a sum of $1,500,000.00 would be required to satisfy an annual expenditure requirement of $60,000.00. However his calculation assumed that the capital would initially increase and that although it might over time diminish, it would nonetheless be essentially left intact at the end of an assumed investment period of ten years. It does not seem to me that this is appropriate. Ultimately Mr Aldridge SC conceded that it would not be appropriate to estimate a capital fund required to satisfy Mrs Mayfield's income needs in this way. 134 The plaintiff and her husband gave instructions to Mr Horne in which they estimated their likely expenses after retirement to be in the order of $500.00 per week each. There is no other evidence of their likely expenses. 135 For reasons which I have already given, I do not propose to make a provision which would provide maintenance of Mr Mayfield. In relation to the plaintiff's projected expenses, Mr Wilson SC pointed out that there is no particularisation of those expenses. Although that is so, there is necessarily an element of speculation in this kind of exercise. The sum of $500.00 per week after tax does not strike me as excessive to cover the cost of food, electricity, telephone, gas, council rates, motor vehicle expenses including petrol, health and dental care, restaurants, recreation and any other ordinary living expenses. 136 The next question is, for how many years the income should be provided? It is impossible to predict accurately when Mr Mayfield will retire from active work on the farm, or will "slow down". However in four years he will be 70, and he has problems with his health to which I have referred. The average life expectancy of a woman of the plaintiff's age is 85. It is true that her father died at that age and that her mother, who gave evidence, is 84 and is still apparently healthy. Mr Aldridge SC submitted that it is quite likely that the plaintiff will outlive the average life expectancy of a 62 year old woman. Against that I have to take into account the respiratory and other health problems from which the plaintiff suffers. It is not possible for me to say to what extent her current health problems have been brought about by the strain of litigation such that her health might be expected to improve in future years. Neither her expenses nor the likely period of required income support is capable of precise estimation. Possibly as the plaintiff gets older there will be a need for nursing and other care which has not yet been allowed for. I will make an order for her provision of a capital sum which will yield $500.00 per week after tax for a period of 20 years. It was agreed that to obtain that sum it was appropriate to use a 3% discount rate. Applying that rate to after-tax income of $500.00 per week for a period of 20 years yields a capital sum of $393,950.00. 137 Next, I think it appropriate to allow a capital sum to provide against the vicissitudes of life, such as unexpected medical costs, and also to provide for some of the conveniences of life such as holidays, travel and a new motor vehicle. Mr and Mrs Mayfield's car, albeit that it is a Mercedes, is now over 20 years old. 138 In striking a figure for contingencies, I take into account the probability that some income from the family trust will continue to be available to the plaintiff which could be used against unforeseen adverse contingencies. (See for example O'Loughlin v O'Loughlin [2003] NSWCA 99 at [26]). Notwithstanding that, taking into account all of the factors to which I have previously referred I regard the sum of $150,000.00 as being a proper sum to allow for the maintenance and advancement in life of the plaintiff on this head. 139 The three figures I have identified add up to $893,950.00. I am satisfied that such a sum would be adequate for the proper maintenance and advancement in life of the plaintiff from the estate and the notional estate of the deceased. The plaintiff is entitled to $41,079.00 from the estate of the deceased. Rounding the figures down, I will make an order for provision of $850,000.00 from the notional estate of the deceased. To use the language of Adam J in Re Buckland, I do not regard that amount as excessive having regard to what "moral justice" requires in all of the circumstances. To use the language of Permanent Trustee Ltd v Fraser (1995) 36 NSWLR 24 at 46 I consider such a provision is in accordance with community standards, for whose fair and reasonable members I am a spokesman. It is a provision which I consider ought to be made to provide adequate provision for the plaintiff's proper maintenance and advancement in life. 140 Counsel agreed that I should defer making any orders for the designation of any property as notional estate until I have delivered my reasons setting out the amount of provision which I will order. Arrangements might be made so that it will not be necessary to make any designating order. If a designating order has to be made the defendant should select those shares which she wishes to be sold to be designated as notional estate. I will stand the matter over to a date which is convenient to both counsel and which may be arranged with my associate for the purposes of the parties bringing in short minutes of order to give effect to these reasons. That date should be within the next fourteen days. 141 I will also order that the plaintiff's costs on a party party basis be paid from the notional estate. Either party may apply for a different costs order. If such an application is to be made, any evidence proposed to be adduced in support of the application should be served on the opposite party and a copy provided to my associate 48 hours before the time appointed for bringing in short minutes. If the defendant wishes to have an order that her costs be paid on a trustee basis out of the notional estate I will make that order, although I doubt that it would be necessary. ******

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