35 The plaintiff is an eligible person and there is no difficulty in this regard. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:
"The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that from arrangements to pay creditors".
36 I turn to consider the plaintiff's situation in life. The plaintiff is 57 years of age with no dependent children and is separated from his wife. His main asset is the property at 12 Buskers Avenue, Exeter, which is a partially completed home and is valued at $230,000 to $250,000. He has two life policies with MLC and AXA worth $49,867 and $1,130; and he has shares to the value of $17,018, savings in a bank account of some $8,961; he has a car worth $4,000, a trailer, tools, furniture and contents worth some $12,000. He does not have any superannuation. He has a number of debts including a Visa card of $37,948.68, he owes the Australian Tax Office $15,000, he has debts to his solicitor of $23,000, a debt to the valuer of $6,954 and a debt to his former solicitor $5,329.20.
37 The plaintiff presently does not have an income. He has not worked for sometime and he is in receipt of unemployment benefits. He receives a New Start Allowance of $215 per week plus $23 per week dividend income. He does not have any medical insurance, hence some of the needs which he has, to which I will refer later. He estimates his present weekly expenses at $588. That is a total of some $30,576 per annum.
38 So far as the plaintiff's medical condition is concerned, he suffers from depression, disrhythmic disorder and from panic attacks. He describes his condition as suffering from intense period of anxiety, insomnia, lethargy, depression and social insulation. The medical information is that his psychiatric problems are deep seated and are unlikely to be resolved. As I indicated, he suffered an accident in 2005 in which he injured his hip. He now has Perth's disease and is in need of a hip replacement. He also requires extensive dentistry work.
39 The plaintiff had a relationship with the deceased throughout his life and, although there may have been some frustrations on the part of the deceased, there is nothing in that relationship which would in any way affect the claim which the plaintiff makes. Apart from the benefits when he was being educated, the plaintiff also received some $14,000 from the deceased in 1987 and $20,000 in 1997.
40 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. These are the defendant and his sister Robyn.
The defendant
41 The defendant is 48 years of age, married with three dependent children aged between 15 and 22 years. He has a number of assets. There is Block C worth $160,000; his equity in the company Mihi Pty Ltd $2,300,000 which is the land. There is the partnership with a negative value of $85,000. He has miscellaneous shares and stocks worth about $30,000; and superannuation of $13,000. His debts included MasterCard of $3,958, a debt to the bank of $426,621. The income of the defendant and his wife, because of the drought, is not great. His wife works to supplement their income and for the year ended 30 June 2007 she earned $7,493. In the previous year it was slightly higher at $11,786.
42 The defendant currently receives a Centre Link exceptional circumstances relief payment of $756.52 per fortnight and his taxable income for the year ended 30 June 2006 was $12,247.
43 Their fortunes are linked to the property and they obviously have a reasonable level of debt. Currently, with the drought and low wool prices, they hardly make any substantial profit. They expect only to break even. He has received a number of subsidies in respect of his operation of the property.
44 The defendant is in good health, apart from a difficult knee and the difficult times which they suffer. He needs to do some work on the property but that is always the case with country properties where there is always something to be done.
45 The defendant had a good relationship with the deceased. There were some criticisms of his treatment of his mother at the end of her life and it is difficult to know the full truth of what happened in respect of those matters. One only has some observations of some people without knowing what the deceased was doing. I do not regard them as serious matters which in any way affect the relationship.
46 I turn to the situation of Robyn Woodford. She is aged 61 years, married to her husband, who is now retired. She works as a real estate agent on the Gold Coast and, because of the nature of her work, has a variable income. For instance, for the year ended 30 June 2004 she had a taxable income of $6,793; and the year ended 30 June 2006 she had a taxable income of $44,624.
47 So far as assets are concerned, her home is owned jointly with her husband and is valued at between $700,000 and $750,000. It is subject to a mortgage $550,000. Not unexpectedly, as a real estate agent she has a number of investment units. Her total equity in those units is between $209,000 and $239,000. She has a car worth $6,000 and they have a number of leased vehicles, which are fully leased. Apart from some shares worth $8,680, she has a bank account with $65,000 therein and has no superannuation. She has miscellaneous credit card debts of $122,625.
48 She also had a relationship with the deceased and received a provision of $20,000 during the lifetime of the deceased.
49 It is necessary to see how the plaintiff says he has been left without adequate provision for his proper maintenance, education and advancement in life. It is only if this is established that the Court has jurisdiction to interfere with the provisions of the will of the deceased. This Court's role is not to re-write the will of the deceased or make what might be said to be a just will in accordance with some beneficiaries' expectations. It is also not a jurisdiction where hurt feelings are rewarded or a jurisdiction where an award is given for good service.
50 The plaintiff claims that provision ought to have been made out of the deceased's estate for the following purposes:
1. $200,000.00 to purchase a small rural property (being the equivalent value of the 64 hectare parcel of land owned by the defendant at Mihi).
2. $291,444.00 to complete the house at Exeter (being $223,025.00 + $30,249.00 + $23,210.00 + $1927.00.00 + $7,679.00 + $5,350.00).
3. $11,490.00 for dental work.
4. $27,500.00 for hip surgery.
5. $42,000.00 for a new car.
6. $27,000.00 for new furniture.
7. $55,000.00 for computer and new tools.
8. $28,000.00 accountants fees to complete an outstanding tax returns.
9. $900,000.00 to produce invested annual income of $45,000.00.
A total provision of $,1,582,430.00.
51 I will deal with each of these in turn. The first one is the purchase of a country property. In this regard the Courts often have claims by adult children for the provision of funds to enable them to acquire a property. The principles in this regard were recently dealt with by Gzell J in McGrath v Eves [2005] NSWSC 1006. He referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:
"67. When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any Court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLF 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.
68. In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109] - [110], White J having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this have occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2--3] NSWCA 352.
69. White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgement, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estate is ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her well being. Thirdly, the applicant did not have any need in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.
70. It was submitted that Mayfield was distinguishable by the absence of these features in instant circumstances and because the appellant in Mayfield had filed no financial evidence had put forward no competing financial or other needs for the Court to consider.
71. And there are differences of fact between Mayfield and the present case. But they do not have effect central proposition that 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 proposition was not criticised by the Court of Appeal. Indeed, at [32] Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision that Court ought to order."
52 The plaintiff says that he would like a 40 hectare property in the Southern Highlands area close to where he lives. It is really a matter of lifestyle. He does not advance to this Court that there is some economic benefit or need for him to have this property.
53 The problem, apart from whether it is an appropriate claim, is that there is no evidence before the Court of what such a property might cost. Certainly it cannot be measured by what he regards as the value of the small parcel which the deceased provided for the defendant during her lifetime.
54 As I say, there is no economic rationale advanced for this desire, it is just simply a matter of lifestyle and enjoyment and I frankly do not consider that it is an appropriate claim.
55 Some of the other matters he mentions are appropriate. Obviously the dental work and his hip replacement are appropriate needs. He probably needs a new car; whether it should be as expensive as he suggests it is another matter. Some furniture no doubt could be replaced. It seems to be a very expensive list of furniture but I accept that some of it would be appropriate.
56 He has mentioned a computer and tools in the sum of $55,000. Given that I think there is a real doubt as to whether he will return to work, I think probably it will not all be necessary. So far as the accountant's fees are concerned, given the lack of work this does not seem to be a great problem. But obviously, it is something which is concerning him. He has not been able to get to deal with it himself so I accept the fact that he does probably need an accountant to actually deal with it. I think he suffers from a great deal of problems of being unable to tackle things like this and, indeed, that is his basic problem about him being able to get back to work.
57 There is a claim for repairs to the house. There is evidence from R & B Hall Builders that the total amount to complete the house is the sum of $223,025.00. That brings it to a very adequate and proper state. For instance it includes all things outside the house, including water tanks worth some $16,500, wood storage shed, driveways and footpath and a whole range of things necessary to complete the home. No doubt some of this should be done and some of these things are necessary, such as the lining of the walls, the internal baths, finishing the kitchen and bathrooms and obviously these are all things that he would like to be done.
58 It is the situation that he has not managed to do this for some 23 years, and probably he is not going to do them. He will probably have to engage someone to do some work for him in this respect.
59 The claim for some income provision is based upon the use of the 5% tables. It is not an appropriate way to calculate it because it takes no account of life expectancy. The fact of the matter is that if one looks at the situation of the estate, putting aside the question of costs in this matter, the plaintiff stands to receive shares of something in excess of $1.2 million and perhaps another $150,000 out of residue of the estate. The income from the shares alone in the last year is a net amount to the estate of in excess of $90,000 so the plaintiff's income is likely to be from shares alone at least $45,000 per annum.
60 That is far more than his current level of expenses to which I have already made reference. He is not in a situation where he is going to start some new enterprise. He is in a difficult situation because of his medical problems.
61 It is unlikely, on the information before the Court, that he may get back to meaningful work and therefore he is likely to just need support for himself to try to come to terms with his difficulties and lead a life which can satisfy him in some way.
62 The amount that he would receive under the estate is sufficient to enable the plaintiff, if he wishes to sell some shares, to enable him to have some funds to meet his expenses and if necessary to do things or part of the things he wants to do to his house.
63 There are other avenues open to him. He is likely to be able to use his assets to put aside superannuation and take benefits in that respect. What this means is that he also has a very substantial fund to deal with any contingencies in life.
64 In my view, on an analysis of the plaintiff's position, the plaintiff has not been left without adequate provision for his proper education and advancement in life and, accordingly, I dismiss the proceedings. I will hear the parties on costs.
(Counsel addressed on the question of costs)