APPEAL
20 The appellant submits that the awards were excessive. Before this Court can interfere with an award it is necessary that the appellant show that the Master made some error in the exercise of his discretion or that the result reached was such that the Court may infer that in some way there has been a failure properly to exercise the discretion vested in him; House v The King (1936) 55 CLR 499 at 505.
21 I think the Master accurately described the appellant as the testator's life partner over his last sixteen years. She supported and cared for him, a factor he undoubtedly recognised when he made his will in her favour on 31 January 1989. Some aspects of the relationship are important and it seems to me, with due respect, that the Master did not give them the attention they deserved. The appellant said that since 1983 she carried out the usual home-maker duties. She cooked meals, bought the testator's clothes, arranged social functions, bought gifts for his family, entertained his and their colleagues, maintained homes in which they lived either together or separately and purchased household effects.
22 The relationship "was not always tranquil", one can infer from what the appellant says, because of his drinking problem. But from December 1982 the deceased paid for the whole of their living expenses and gave the appellant $800 per month. She says they lived well. They had credit accounts at local stores and she was a signatory to the company cheque book. In 1984, she accompanied the testator when he went to Dallas on business. She said they enjoyed an affluent lifestyle. The testator worked and she shopped and travelled. They had credit cards to most of the department stores and a joint cheque account into which his salary was paid. When they returned to Australia on 25 April 1985, the testator upgraded their American Express cards to gold cards, gave the appellant $1,000 per month and paid for their living expenses.
23 In 1985 the testator moved out of Neutral Bay to live in Cremorne. However they continued to see each other and spoke on a daily basis. They shared a motor vehicle and the testator continued to pay rents and utilities for both properties. He continued to give the appellant $1,000 per month and allowed her to use the credit cards and store accounts without reference to him. In 1987 the testator attended Alcoholics Anonymous and resumed living with the appellant at Neutral Bay. In February 1988 he moved out again. In March 1988 they went on a three week holiday to the Maldives.
24 In April 1988 the testator was admitted to the Sanatorium Hospital in Wahroonga where he underwent a triple bypass operation on 21 April. He spent almost four weeks in hospital. During that time the appellant cancelled the lease on his apartment and moved his belongings back to Neutral Bay. Upon his discharge from the hospital, he returned to live with the appellant at Neutral Bay. He was very ill for two months and needed constant care. The appellant cared for him on a daily basis. After he returned to work and resumed his former life, he moved out of Neutral Bay to a serviced apartment in Artarmon. He maintained a room there until he purchased the Newport property in 1990. He continued to pay the rent and utilities plus HCF and credit cards as well as $1,000 a month. Frequently they swapped cars.
25 There were long discussions between them before the purchase of the property at Newport. The appellant said that the testator was well aware of the age difference between them and his limited life expectancy. He said that he had been told he had only four or five years to live. He said it was important that the appellant should own a property. They looked at a number but found none upon which they both agreed. When Newport was purchased the house needed work. The testator regarded it as a way of using his spare time and money thereby reducing the opportunity for drinking. He said the appellant would be able to indulge her passion for gardening. Before the Newport property was purchased, the testator said to the appellant:
"It makes more sense financially to purchase the property in my name only. I have borrowed the maximum and have appropriate mortgage insurance. You won't be stuck with the mortgage payments. I've taken advice from financial planners. If it worries you we will put the property in both names, but financially it is a better decision to put the property in my name."
26 The appellant encouraged him to put Newport in his name only, believing he needed to own the property in his own name to encourage his sobriety. The testator told various people who came to Newport that the appellant was the owner of Newport and he was her tenant. The appellant delayed moving to Newport to give her an opportunity to observe his new bout of sobriety. She had been granted a disability pension and suggested he put her allowance towards the mortgage repayments on Newport. After consultation with the Department of Social Security he continued to pay rent for Neutral Bay, HCF and credit cards. He continued to give the appellant a monthly cheque for $1,000 but she did not cash them because, as she said in her oral evidence, she felt it was more important that the money go towards the mortgage.
27 In 1990 when the testator was in Paris on business he had a stroke. The appellant arranged for his return and, when he returned, moved him into Neutral Bay until she was satisfied that his health was good enough for him to be left unattended. He then returned to live at Newport. She says that whenever the testator was ill she would keep him at Neutral Bay as it was closer to the hospitals and his doctor. She spoke to the testator at his office on most days. If he did not turn up for work or his behaviour was inappropriate, his colleagues would ring her. In December 1993 he was convicted for driving under the influence of alcohol and lost his licence for six months. He then arranged for lifts to work and used taxis which, in the words of the appellant, "removed all discipline over his drinking." The appellant shopped for grocery items for Newport. She kept his car at Neutral Bay.
28 After not visiting Newport for several months she saw it in December 1993 when they bought a new washing machine. The house was in need of repair. They had money in the bank so the appellant started work there in January 1994. She contracted the builder, put on a new roof, replaced walls and ceilings in the office, bathroom and laundry, repaired termite damage, cleared the overgrowth from the garden and removed approximately eight tonnes of rubbish. She paid the contractors; bills with the testator's money. She spent between $10,000 to $15,000 during 1994 on repairs and renovations of Newport.
29 In June 1994 the deceased's employment was terminated. At that time he had a salary in excess of $240,000 per annum. When he lost his job they reduced their expenses, by amongst other things, cancelling their American Express Cards, HCF and the builder. The appellant modified the renovation plans. They undertook most of the work themselves. That included removing wallpaper, painting, clearing the land, paving and landscaping. The appellant drove to Newport on most days. She says that she would use a key-card to the testator's account at the Advance Bank for cash and an NAB Master Card for credit purchases. She used her pension for her own living expenses and the testator's money for Newport. She managed the testator's affairs and gave him an allowance. She tried to keep the testator busy and motivated and spoke to him every day. She says:
"I would phone him early in the morning as a wake up call and suggest tasks for the day. If we were not visiting each other we would usually speak again in the afternoon. I purchased an answering machine for Newport and put a message on redirecting callers to my number should he not answer. The computer was at Newport and the fax at Neutral Bay so he would commute between both properties."
30 In November 1995 the testator had a severe angina attack while they were on an outing. She took him Royal North Shore Hospital where he underwent another angiogram. One of his coronary artery grafts was blocked and the other two had build-ups appearing. He spent one week in hospital.
31 Over the next year and a half the testator's health deteriorated. He had severe claudication and could not walk very fast. He was coughing constantly, short of breath and his blood pressure was dangerously high. His medication eased the pain but he did not modify his lifestyle. He became more and more dependent on the appellant. She tried to keep him active and well-fed. She continued to work on the house at Newport. They were short of money. They saw each other three to four days per week.
32 In May 1997 she went to Adelaide in the testator's car. The testator did not accompany her and maintained Neutral Bay and Newport while she was away. They spoke to each other everyday. He told her he had a cold. She returned home and he died in his sleep of a heart attack in June 1997.
33 The appellant said:
"I have been financially supported by the deceased since 1982. I've considered myself primarily a homemaker since that time. We were committed life partners and felt that maintaining separate homes enhanced our relationship. We were each emotionally dependent on the other. We each kept clothing, toiletries and personal items in both houses.
Prior to being granted a disability pension in 1990 I supplemented our income minimally with some casual work as an office temporary and in 1986 - 1989 I worked as a freelance stylist for several film companies."
34 I have set out in a good deal more detail than the Master did the appellant's account of her relationship with the testator. None of this was challenged. It leads me to the conclusion that the claim on the testator's estate that the appellant had was the same as the claim she would have had if she had been married to him. It is a claim of a high order not to be satisfied by an amount which is no more than a bare subsistence and it is a claim which, in my respectful opinion, must be appropriately met out of the estate before any claim by the respondents be considered. The testator had been an astute businessman and there is nothing to suggest that, in making the will he did, he did other than recognise appropriately the claim that the appellant had upon him. Quite simply, he depended on her for support as she depended on him. Dr Fisher, who had been her doctor since 1976, said in his report, as I have quoted, "John Allen desperately needed the caring of Susan Blackmore. Without her he would have died earlier." There is no reason to doubt this opinion.
35 The appellant has a fortnightly pension at $274.50. Her life expectancy is 34 years. The testator regarded an appropriate allowance for her as $1000 a month in addition to outgoings. He also, by means of credit cards and otherwise, gave her the security of being able to meet unexpected contingencies.
36 The respondents are both young, healthy and self sufficient. They were not dependent in their adult life on the testator nor did they contribute in any way to his fortune. I have set out the earnings, assets and liabilities of both. Each has benefited by the payment to them of $22,333 from the Rothschild Trust Fund. Section 9(2) of the Act required the Master as the High Court pointed out in Singer v Berghouse (1994) 181 CLR 201 at 208 to be satisfied, before an order could be made in favour of a respondent, that that respondent had been left without adequate provision for his or her proper maintenance, education and advancement in life.
37 I have quoted those parts of the reasons for judgement where the Master said, it seems to me correctly, that there was no need for maintenance or education. What was sought was something by way of advancement in life. The Master said of Nicole that she had some need "perhaps" to meet a debt which she had on the car and some other provision by way of a sum for advancement in life. He referred to Steven's rather substantial joint liabilities with his partner and his own individual liabilities. The Master noted that it was not suggested that Steven and his partner were not adequately making-do. The Master acknowledged that both respondents were young and in appropriate employment with good earning capacity. He noted the receipt from the Rothschild Fund. His reasons for the award he made is, with due respect, difficult to understand. He said only "In my view, it is appropriate that they have a legacy to provide for some advancement in life." No reason is given for the legacy of $80,000 beyond saying "there will still be substantial funds available for [the appellant] over and above the other assets which will pass to her, as will the house, the car, the fund she receives from Rothschild and the investment she has from the superannuation."
38 It is not entirely clear how these "substantial funds" should be calculated. However, in broad terms counsel for the parties agreed that if the orders stand, the appellant would receive the house and the motor vehicle and money and assets to a value of approximately $240,000 to $250,000 without bringing into account the costs of this appeal. Even if the Master was satisfied that this sum was sufficient to provide appropriately for the appellant out of the testator's estate, I do not think that it is correct simply to divide the balance between the respondents. In my opinion, an award of $80,000 to Nicole was clearly excessive. While I am inclined to think that Steven had a greater claim than Nicole I am satisfied that the amount awarded was also excessive in his case. With the death of the testator each received an amount of $22,333 from a fund considered part of his estate. If it were appropriate to award anything more than that on account of advancement in life, it would have to be a small amount.
39 As the Master recognised, a Court dealing with applications under the Family Provision Act has no charter simply to redivide the estate in some way which appears to be fairer. The charter is no more than, in all the circumstances and taking account of competing claims, to make adequate provision for the proper maintenance, education or advancement in life of the eligible person.
40 However, in my opinion, if the orders made were to stand, the amount left in the estate for the benefit of the appellant would be clearly far too low. I repeat that the appellant is comparatively young, 44 at the date of the hearing and now 45. Her life expectancy is approximately 34 years. Her health is not good. She requires continuing treatment and will do so possibly for the rest of her life. The amount left over would be barely sufficient, properly invested, to assure her of the $1,000 a month the testator thought appropriate. There are contingencies to be brought into account. Her health may worsen. She may not survive for the full period of 34 years. She may remarry. However, I am not persuaded that the Master was correct in saying that there were substantial funds available to meet what should be her appropriate entitlement out of the estate. It could not be suggested that her claim was not the greater one.
41 In my opinion, the awards of $80,000 were excessive. The amount itself was well beyond what was appropriate in the circumstance and indicates error. Accordingly, I think that the order for the payment to the respondents of legacies of $80,000 should be set aside.