[1992] FCA 806
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
[1915] HCA 14
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Source
Original judgment source is linked above.
Catchwords
[2003] HCA 9
Bassett v Bassett [2021] NSWCA 320
Bladwell v Davis [2004] NSWCA 170
Blore v Lang (1960) 104 CLR 124[2014] NSWCA 392
Clifford v Mayr [2010] NSWCA 6
Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246[1992] FCA 806
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539[1915] HCA 14
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9[1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808[2008] UKHL 52
Re Coventry (Deceased) [1979] 3 All ER 815
Re Crewe, Crewe v Corbett [1956] NZLR 315
Re SchlinkKeane v Corns [2020] VSC 180
Re StojanovskaStojevski v Stojevski [2020] VSC 702
Re the Will of Sitch (deceased)[2013] NSWSC 522
Steinmetz v Shannon (2019) 99 NSWLR 687[2019] NSWCA 114
Stern v SekersSekers v Sekers [2010] NSWSC 59
Szypica v O'Beirne [2013] NSWSC 297
Tchadovitch v Tchadovitch (2010) 79 NSWLR 491[2010] NSWCA 316
Vigolo v Bostin (2005) 221 CLR 191[2005] HCA 11
Vukic v Luca Grbin
Judgment (37 paragraphs)
[1]
(No 2) [2012] NSWSC 35
Hertzberg v Hertzberg [2003] NSWCA 311
Ibrahim v Nasr [2021] NSWSC 1321
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Johnson v Wright [2012] NSWSC 87
Kay v Archbold [2008] NSWSC 254
Langtry v Campbell (7 March 1991, Powell J, unreported)
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Marshall v Carruthers [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCosker v McCosker (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Milillo v Konnecke [2009] NSWCA 109
Moore v Moore (NSWCA, 16 May 1984, unreported)
Morris v Smoel [2014] VSC 32
Neil v Jacovou [2011] NSWSC 87
North v Daniel [2021] NSWSC 828
O'Leary v O'Leary & Eccles [2010] NSWSC 1347
O'Loughlin v O'Loughlin [2003] NSWCA 99
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Pogorelic v Banovich [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52
Re Coventry (Deceased) [1979] 3 All ER 815
Re Crewe, Crewe v Corbett [1956] NZLR 315
Re Schlink; Keane v Corns [2020] VSC 180
Re Stojanovska; Stojevski v Stojevski [2020] VSC 702
Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308
Salmon v Blackford [1997] NSWCA 274
Sellers v Scrivenger [2010] VSC 320
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Szypica v O'Beirne [2013] NSWSC 297
Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41
Walker v Walker (NSWSC, 17 May 1996, unrep)
Welsh v Mulcock [1924] NZLR 673
Wilcox v Wilcox [2012] NSWSC 1138
Yee v Yee [2017] NSWCA 305
Texts Cited: Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths)
Category: Principal judgment
Parties: Robyn Lorraine Clarke (Plaintiff)
Todd Raymond Clarke (first Defendant)
Michelle Anne Clarke (second Defendant)
Representation: Counsel:
M Maconachie (Plaintiff)
G Rich (Defendants)
These are proceedings to be decided under Chapter 3 of the Succession Act 2006 (NSW) (the Act), which applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. This type of legislation has been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).
By Summons filed on 12 November 2021, the Plaintiff, Robyn Lorraine Clarke, seeks a family provision order, that is an order made by the Court, under Chapter 3 of the Act, in relation to the estate, or notional estate, of a deceased person, to provide for the maintenance, education, or advancement in life of the eligible person, from that estate and for her costs of the proceedings. The order sought is for provision additional to, or in lieu of, that provided for her by the Will of her husband, Mervyn John Clarke (the deceased).
The deceased died on 16 April 2021 leaving property in New South Wales.
The deceased made a duly executed Will on 17 April 2019, Probate of which was granted, by this Court, on 30 November 2021, to the Defendants, Todd Raymond Clarke and Michelle Anne Clarke. (The Plaintiff was also an executor named in the deceased's Will, but she renounced Probate.) They are the deceased's only children by a prior marriage.
I shall refer to the parties, where necessary, after introduction, by her, or his, given name, for clarity, and convenience, and without intending to convey undue familiarity or disrespect.
There can be little doubt, principally based upon the affidavit and oral evidence of each of the parties, and acknowledged by each of them, that she, and they, bear some resentment, and some animosity, towards the other. (Todd stated that he no longer held any resentment as he has effectively "moved on": Tcpt, 30 November 2022, p 38(40-47). Even accepting that he has done so, he acknowledged that, for some time, he had harboured resentment towards Robyn. The resentment held was, perhaps, demonstrated in Robyn's evidence of part of Todd's speech at her and the deceased's wedding reception, when he said, "She wasn't welcome in the family, but I suppose now she is" (Affidavit, Robyn Lorraine Clarke, 7 February 2022 at [29]), which statement he said he did not recall making.)
[4]
Some formal uncontested matters
Robyn's application was made not later than 12 months after the date of the death of the deceased person, so it was made within the time prescribed by the Act: s 58(2) of the Act.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a person who was the spouse of the deceased at the time of his death, Robyn is an eligible person within s 57(1)(a) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased.
As the deceased left a Will that dealt with all of his property, there is no scope for the operation of the rules of intestacy, so that it is only necessary, hereafter, to refer to the Will of the deceased.
A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5). "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act. In this case, the parties do not seek any order designating property as notional estate of the deceased.
The only eligible persons, other than Robyn, are Todd and Michelle, who are, now adult, children of the deceased. Neither has made a claim for a family provision order. Each is a beneficiary named in the deceased's Will, and each has filed evidence of his, and her, relationship, respectively, with the deceased and his, and her, financial and material circumstances. I shall refer to the situation in life of each of them, later in these reasons.
The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though he, or she, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and his, or her, competing claim, respectively, as a chosen object of the deceased's testamentary bounty.
On this topic, what was written in Edgar v Public Trustee for the Northern Territory [2011] NTSC 5 at [46], by Kelly J, should be remembered:
"There is no onus on the ... residuary beneficiary under the will to show that she is entitled to be treated as such - or to prove what may be necessary for her proper maintenance and support. Rather the onus is on the plaintiff to show that proper provision is not available for him under the terms of the will. In determining whether this is the case the Court must have regard to all relevant circumstances including the size of the estate and the nature of the competing claim by the widow. In performing this task the Court must have due regard to the will of the testator and should interfere only to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of an applicant who has passed the first jurisdictional hurdle. As Dixon CJ said in the passage from Scales quoted above, due regard must be had to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his will. (Omitting citations)
[5]
The deceased's testamentary intentions
There was no evidence that the deceased had made any other Will, including one in which Robyn would be more generously provided for than she was in the Will which was the subject of the grant of Probate. At the outset of the hearing, the Court asked whether any enquiries had been made going to whether the deceased had made any prior wills, with the response that there were no other known Wills: Tcpt, 30 November 2022, p 2(6-10). Thus, the only documentary evidence of the testamentary intentions of the deceased was his last Will, to the contents of which reference will be made.
Nor was there evidence that the deceased's instructions for, and the execution of, the Will were rushed because of exigencies then facing him, or that when he made the Will, he was in extremis.
Robyn stated that she and the deceased did not regularly discuss his testamentary intentions. She did hear him say that "Robbie will always have somewhere to live" and "she'll always have a roof over her head." However, in cross-examination, she was asked questions about her knowledge of the deceased's testamentary intentions. She agreed that she had known about the deceased's intentions concerning his Will, as they had attended, together, upon the solicitor to give instructions in relation to Wills; that they had been together when the instructions were given to the solicitor; and that they had attended, together, on a second occasion, a few months later, when each of the Wills was reviewed and signed: Tcpt, 30 November 2022, p 16(4-50).
(Robyn did not disclose the contents of any Will she had made during her relationship, or marriage, with the deceased, and what, if any, provision, she had made for him in the Will she gave instructions for, and then signed, at the time the deceased had signed his Will.)
Robyn also accepted that they had discussed the contents of the deceased's Will, although she asserted that there had been a dispute about his Will. She acknowledged that there had been no conversations about any such dispute referred to in any of her affidavits and that she had not, otherwise, given evidence of any such dispute in her affidavits: Tcpt, 30 November 2022, p 17(1-39).
She was not asked any questions, in re-examination, about her reasons for failing to disclose that matter in her affidavits, or about the nature of the alleged dispute.
[6]
The deceased's Will
The deceased's Will was professionally drawn and duly executed. In that Will, the deceased, relevantly:
1. Revoked all former Wills and testamentary acts (Clause 1).
2. Made a bequest of a boat to Michelle and Todd (Clause 3).
3. Made a bequest of any motor vehicle, caravan, furniture, and any money in any bank or financial institution to Robyn (Clause 4).
4. Provided a right of occupation in his property located at Eames Avenue, North Haven, ("the North Haven property"), (described in the Will as "the home") to Robyn, for as long as she wished, or until she ceased to live therein permanently, or failed to pay the rates, taxes and insurance premiums thereon, and to keep it in repair, or if it was required to be sold to repay the loan to the Commonwealth Bank of Australia (Clause 5).
5. Directed that if Robyn no longer wished, or had ceased, to live in the North Haven property, then, at her written request, or if it was required to be sold to repay the loan, it was to be sold and the net proceeds of sale, were to be distributed, in equal shares, to Robyn, Todd and Michelle: (Clauses 5 and 6).
6. He left the residue of the estate, after payment of debts, funeral and testamentary expenses, to be divided, equally, between Robyn, Michelle and Todd (Clause 7).
[7]
The nature and value of the deceased's estate
It is necessary to assess the value of a deceased's estate as at the date of death and as at the date of the hearing. On 1 November 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule which contained:
1. the assets and liabilities of the estate at the date of death;
2. the assets and liabilities of the estate at the date of hearing;
3. the estimated costs and expenses of any property that is to be sold or that has been sold;
4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and
5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
In accordance with the direction, the parties provided a Schedule, dated 18 November 2022, a copy of which was tendered, without objection, at the commencement of the hearing, and marked as Ex JS1. I have taken what follows from the Schedule, and from discussions with counsel during the course of the hearing. (I shall omit, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
At the date of death, the deceased's actual estate was estimated to have a gross value of $590,009. The estate was said to consist of the North Haven property ($540,000), monies in bank ($9), a boat, with trailer and motor ($10,000) and a car, which Robyn asserted, and which Todd and Michelle disputed, she owned jointly with the deceased ($40,000). The liabilities of the estate, at the date of death, were said to be the debt, secured by mortgage, registered over the North Haven property ($60,450) and unpaid administration costs ($8,000): Tcpt, 30 November 2022, p 2(35-45). It follows that the value of the net estate, at the date of death, was $521,559.
At the date of the Schedule, the estimate of the gross estate was $660,009. The estate was said to consist of the North Haven property ($650,000), money in bank ($9), and the boat, with trailer and motor ($10,000). The liabilities of the estate, at the date of the Schedule, other than the costs of the proceedings, were said to be the amount secured by the mortgage registered over the North Haven property ($65,437), the unpaid administration costs ($8,000) and the costs and expenses of sale of the North Haven property (approximately $23,300).
[8]
Costs of the Proceedings
Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that his, or her, costs, calculated on the indemnity basis, be paid out of the estate. The value of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual orders.
Every effort was made, by the Court, to encourage the parties to resolve the proceedings. A judicial settlement conference, in lieu of a mediation, was conducted on 3 March 2022, at which the Court reminded the parties of what has been written in many cases, by other judges, and by me, in the context of a claim for a family provision order, that they should not assume, in all cases, that this type of litigation can be pursued safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18]; North v Daniel [2021] NSWSC 828 at [82].
In addition, the legal representatives, probably unnecessarily, were requested to ensure that the party each represented, was encouraged to compromise, was informed of the desirability of compromise, and that each of them was made fully cognisant of the hard realities of costs when considering whether to continue the litigation: Bassett v Bassett [2021] NSWCA 320 at [34]-[35] (Bell P, Leeming and Payne JJA).
[9]
Background Facts
It is next convenient to set out some background facts that are not the subject of any dispute between the parties. Despite the large number of affidavits (11), most of these facts are largely uncontroversial. To the extent that any are in dispute, what follows should be regarded as the findings of the Court. These facts, at least, are to be considered, with others, in reaching the decision to which I have come.
The deceased, at the time of his death, was 82 years old.
The deceased was first married to Hazel Grace Clarke in October 1962. She died, in June 1995, at the age of 53 years.
There were two children of the deceased's marriage to Hazel. Michelle was born in April 1963 and will be 60 years old on her next birthday. Todd was born in March 1965 and will be 58 years old on his next birthday. Each gave evidence that he, and she, grew up in a happy, stable, and loving family environment.
The deceased worked in the construction industry as a Project Manager and would often be away from home, other than on weekends.
Very little evidence was provided by Robyn about her life before she met the deceased. Robyn was born in October 1947 and is, currently, 75 years old. She was married, but her marriage ended in divorce on a date not disclosed in the evidence. There were two children of the marriage, both of whom are now adults: Tcpt, 30 November 2022, p 20(26-39). Neither of her children played any role in the proceedings.
Robyn was at the date of the hearing retired from paid employment. She described her previous occupation as being that of "an office worker": Tcpt, 30 November 2022, p 14(19-20), although she also said that she had worked in a retirement village.
The deceased received the North Haven property, as a gift from his mother in December 1991, some four years before the commencement of his relationship with Robyn. After their relationship commenced, Robyn and the deceased would stay there at different times.
The deceased and Robyn commenced a relationship in October 1995, and they were married to each other on 23 September 2004. Robyn said that the relationship began slowly, and the process of coming to live together was a gradual one, with each of them living at her, and his, own residence, although they would often stay at the home of the other. She also asserted that she moved into the North Haven property on a full-time basis in about 1999. She recollected that she moved there shortly after she had attended the funeral of the deceased's brother. It was then an old fishing shack that was quite run down. Over time, the Plaintiff and the deceased renovated the North Haven property.
[10]
The broad outline of submissions
The principal questions for the Court to determine are:
1. Whether, at the time when the Court is considering the application, adequate provision for Robyn's proper maintenance or advancement in life has not been made by the deceased's Will: s 59(1)(c) of the Act?
2. If so, what, if any, order for provision out of the estate of the deceased ought to be made for her maintenance or advancement in life, having regard to the facts known to the Court at the time the order is made: s 59(2) of the Act?
3. What costs order, if any, should be made?
In summary, counsel for Robyn, initially, submitted in writing:
"34. The Deceased owed a moral duty to Robyn to provide for her after his death. The Deceased's will did not adequately provide for Robyn.
35. Further provision is required in order to adequately provide for Robyn. Transfer of the Property to Robyn would enable Robyn to be housed. She would then be able to refinance so as to discharge the current mortgage and pay reasonable costs of these proceedings. Given Robyn's contributions to the Deceased in terms of both loving support and financial means, transfer of the Property to her would be appropriate."
Thus, the provision that Robyn has continued to seek is, in the events that have happened, the whole of the proceeds of sale of the North Haven property owned by the deceased. During her evidence and the oral submissions of counsel, I formed the impression that her claim was incapable of modification. Indeed, she gave the somewhat implausible, and surprising, evidence that assuming the North Haven property had to be sold, she had not thought about what she might do and that she had not found out what it might cost to buy a house.
Furthermore, during her oral evidence, Robyn seemed to maintain what seemed to be an unrealistic view that, despite her, apparently unsuccessful, attempts to do so prior to the hearing, she may still be able to obtain a reverse mortgage, from a third party, that would yield a sufficient sum to enable her to pay all of the expenses and costs that were required to be paid. She asserted in cross-examination that she had not agreed to the sale of the North Haven property: Tcpt, 30 November 2022, p 6(36)-7(17); 18(14-21); 21(8-36).
In final submissions, her counsel submitted that "the plaintiff readily accepts that she hasn't inspected properties of the type that, in my submission, are appropriate for her because of the uncertainty of what was happening": Tcpt, 30 November 2022, p 41(10-13). When pressed, he submitted that "the evidence of what she actually needs is a place that she can own, as she's always owned". (Presumably, counsel meant "like that she had lived in" since she had never owned any share of the North Haven property and the deceased made clear that she would not do so on his death.)
[11]
The Statutory Scheme
There was really no dispute about the legal principles that apply. However, for the benefit of the parties, I shall discuss the principles.
The key provision is s 59 of the Act. The court must be satisfied, first, that the applicant is an eligible person. As stated, there is no dispute about her eligibility.
Then, as Robyn has established eligibility, the Court must next determine, relevantly, whether adequate provision for her proper maintenance, education and advancement in life has not been made by the will of the deceased (s 59(1)(c)). It is only if the Court is satisfied of the inadequacy of provision, that consideration is given to whether to make a family provision order (s 59(2)). It may take into consideration, then, the matters referred to in s 60(2) of the Act. Thus, the Court has a discretionary power to interfere with a testamentary disposition if satisfied that the requirements set out in s 59 of the Act have been met.
Relevantly, in this case, other than by reference to the provision made in the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for the applicant's proper maintenance or advancement in life. The question would appear to be answered by an evaluation that takes the court to the provision actually made in the deceased's Will, on the one hand, and to the requirement, in this case, for maintenance and advancement in life of the applicant on the other. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of the applicant.
In Grey v Harrison [1997] 2 VR 359, Callaway JA observed, at 366-367:
"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."
[12]
Applicable Legal Principles
Accepting that no two cases will be exactly alike, there are some general principles that may be stated. Whilst most of these principles were given in the context of the previous legislation, they are equally apt in a claim such as this one.
Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 at 6, in relation to the former Act, that it is not appropriate to endeavour to achieve a 'fair' disposition of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants. The Court's role is not to reward an applicant, or to distribute the deceased's estate according to notions of fairness or equity. Nor is the purpose of the jurisdiction conferred by the Act the correction of the hurt feelings, or sense of wrong felt, by an applicant. Rather, the Court's role is of a specific type and goes no further than the making of 'adequate' provision in all the circumstances for the 'proper' maintenance, education and advancement in life of an applicant.
Windeyer J in Blore v Lang (1960) 104 CLR 124 at 137; [1960] HCA 73, commented:
"The jurisdiction under the Testator's Family Maintenance Act is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case."
In Cooper v Dungan (1976) 50 ALJR 539; (1976) 9 ALR 93, Stephen J, at 542, reminded the Court to be vigilant in guarding "against a natural tendency to reform the deceased's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant".
Callaway JA (Tadgell and Charles JJA agreeing) in Grey v Harrison at 366 observed about testamentary freedom:
"… it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. [59, Succession Act] the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent. …"
[13]
Additional Facts
I next set out the additional facts that I am satisfied are either not in dispute, or that have been established by the evidence. I do so by reference to s 60(2) of the Act.
[14]
(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship
The relationship between Robyn and the deceased was that of wife and husband. At the time of the deceased's death, they had been married for over 16 years, but their relationship, otherwise spanned approximately 25 years. There were no children of their marriage.
I am satisfied that their relationship was close and loving. They lived together in the North Haven property for about 18 years. The relationship between them appears to have been one of love, affection, mutual dependence and support. Indeed, there were no submissions to the contrary and no cross-examination of Robyn to suggest otherwise.
[15]
(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate
Disregarding any obligation, or responsibility, arising as a result of their relationship as spouses, the deceased, on death, did not have any legal, or financial, obligation to Robyn, imposed upon him by statute or common law. However, as set out above, after a marriage of this duration, one could not but conclude that he had both an obligation, and a responsibility, to provide for her out of his estate. This he recognised in the Will that he made.
Leaving aside any obligation, or responsibility, arising as a result of their relationship as parent and child, the deceased, on death, did not have any legal, or financial, obligation to either of his children, each of whom is an adult, imposed upon him by statute or common law. It is clear that each was financially independent, for many years, before the death of the deceased.
Yet, an obligation, or responsibility, to make adequate provision for children, if able to be done, may be recognised in the case of a child of the deceased. In any event, each is a chosen object of the deceased's testamentary bounty and a person recognised by him.
Todd gave evidence that he had a close and loving relationship with the deceased. In 1995, his mother passed away from liver cancer. She was 53 years old, and Todd was, then, 30 years old.
Todd stated that from 1995 until his death, he had constant interaction with the deceased. They would communicate weekly by telephone, discussing how each was and their mutual interests in greyhounds and horseracing. Todd and the deceased part owned a racehorse, which Todd trained. They would also go to race meetings together.
When Todd moved from Sydney to Dunbogan in 2004, he lived only 10-15 minutes away from the deceased. In 2004, when the deceased married Robyn, Todd was the deceased's best man.
In addition, the deceased and Todd would frequently go fishing together on one of the deceased's boats. The deceased would also go over to the caravan park at which Todd worked and help with maintenance. They would help each other out when they could.
[16]
(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered
I have dealt with this earlier in this judgment. The value of the deceased's estate is modest.
[17]
(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate
Robyn gave evidence that her assets and liabilities are as follows:
Assets
Description Estimated value
Subaru Forrester 2020 $32,000
Cash in bank $ 6,010
Personal effects and furniture $ 5,000
Total assets $43,010
Liabilities
Nil $ 0
TOTAL $43,010
[18]
She also gave evidence that her monthly expenditure is as follows:
Description Amount
Home and utilities $ 580
Insurance and financial $ 412
Groceries $ 780
Personal and medical $ 202
Entertainment and eating out $ 137
Transport and auto $ 80
TOTAL $2,191
[19]
She has a gross monthly income of $2,224, derived from a Centrelink pension. There is a modest surplus of about $34 per month.
Robyn's financial circumstances are modest. It appears that as the North Haven property must be sold, she will have no home, little cash and other property with a total value of less than $50,000. At the age of 75, she has no real earning capacity.
There was a failure by Robyn to provide precise evidence of the costs of alternative accommodation which she had considered. Although she provided some evidence of the cost of available properties in the North Haven area, in her affidavit of 19 March 2022, these properties do not help the determination of the case as most were either too expensive, were located in a caravan park, or were not adequate and proper in all the circumstances: Tcpt, 30 November 2022, p 43(39-50).
In her affidavit of 27 October 2022, Robyn provided additional references to other properties, that were available for sale in the North Haven area. Each of these properties was simply too expensive, bearing in mind the available estate out of which provision could be made for her.
She also stated in her affidavit of 27 October 2022 that she had not included any properties for sale that were located in caravan parks as she had never lived in a caravan park, and her experience when staying in a cabin or in a caravan park, or residential village, was that she has not felt comfortable when doing so.
In her affidavit made on 19 March 2022, Robyn gave evidence of her borrowing capacity, based on information she had obtained from the Commonwealth Bank. She stated that her borrowing capacity was $54,000, which would require repayments of $299 per month, based on an interest rate of 2.99% per annum.
Todd gave evidence of alternative accommodation that may be suitable by way of a guide as to the costs of such accommodation. In his affidavit, affirmed 9 May 2022, Todd indicated that he had conducted research regarding available properties in the Laurieton and Port Macquarie areas. His searches had revealed the following properties:
1. One-bedroom properties in Parklands Retirement Village, Port Macquarie, which were between $151,000-$163,000. These units are serviced apartments which provide meals, cleaning, electricity and water, for the cost of $1,400 each month.
2. A one-bedroom property in Governor's Retirement Resort, Port Macquarie, which was $205,000. This unit was also a serviced apartment which provides meals, cleaning, electricity and water, for the cost of $1,100 each month.
3. Two-bedroom relocatable homes in Riverside Village, Port Macquarie, which were between $215,000-$235,000. These properties also require a weekly site fee of $175 to be paid.
4. A two-bedroom relocatable home in Melaleuca Village, Port Macquarie, which was $239,000. This property also requires a weekly site fee of $151 to be paid.
5. A two-bedroom relocatable home in Brigadoon Caravan Park, North Haven, which was $229,000. This property also required a weekly site fee of $150 to be paid.
6. A one-bedroom relocatable home in Haven Village, Laurieton, which was $178,500. This property also required a weekly site fee of $140 to be paid.
[20]
Todd accepted, in cross-examination, that he had received the deceased's boat and his fishing gear, which he had taken from the North Haven property.
Todd gave evidence that his monthly expenditure is as follows:
Description Amount
Mortgage payments $3,177
Council rates $ 195
House insurance $ 208
Car registration $ 67
Car insurance $ 43
Motor vehicle running and service costs $ 400
Mobile telephone $ 50
Pay TV $ 130
Electricity $ 180
Food and groceries $ 500
Cigarettes, drinks and alcohol $ 390
Paying off personal loan $ 280
TOTAL $5,620
[21]
Todd is currently employed as a delivery truck driver by Dorvik Steel, where he has been employed for seven years. His current gross monthly income is approximately $4,597. Stephanie is currently employed as an accounts' administrator at Dorvik Steel. Her gross monthly income is approximately $4,368.
Michelle gave evidence (updated orally) that she has the following assets and liabilities:
Assets
Description Value
Telarah property $550,000
2000 Holden Statesman $ 5,000
Bank account $ 2 (approx.)
Superannuation $ 41,308
Liabilities
Description Value
Mortgage $134,485
Personal loan from CBA $ 6,641
TOTAL $455,184
[22]
Michelle stated that her monthly expenditure is as follows:
Description Amount
Mortgage repayments $ 943
Council rates and water rates $ 349
House and contents insurance $ 141
Car registration and third-party insurance $ 72
Car insurance - comprehensive $ 51
Motor vehicle running costs $ 240
Mobile telephone $ 70
Electricity $ 70
Food and groceries $ 650
Health insurance $ 225
Personal loan repayments $ 390
Gifts $ 16
TOTAL $3,217
[23]
Michelle is currently unemployed and is on Centrelink payments. Her current gross monthly income is approximately $1,276.60. She uses all her unemployment benefits, except for about $80, in covering house payments and repayments of her personal loan. Her partner, Dave contributes the rest.
She had been employed as a part time traffic controller between 1997 and 2020 but had been unemployed since February 2020. Since then, she had not even obtained any casual work. She had not looked for other work: Tcpt, 30 November 2022, p 26(37)-27(4).
Michelle has been in a relationship with Dave for approximately 22 years. They do not have any children.
Dave is currently employed as a truck driver. His current gross monthly income is approximately $6,000, and he contributes approximately $942 per month to the mortgage repayments. He also contributes to the cost of groceries and living expenses.
Michelle gave evidence that she lives week to week. She has no formal qualifications and limited assets. She stated that she would like to have a lump sum to enable her to meet the usual unexpected expenses that always occur in life, particularly to meet her living expenses and to meet her future expenses.
Her current car is a 2000 Holden Statesman, and she believes that it will not last another five years. She would like a new car or a good second-hand car that is reliable, estimating this to cost approximately $25,000-35,000.
Michelle's house is in need of repairs and maintenance. Her house was built in the 1950s and it either needs to be demolished and rebuilt, or it requires full renovation inside and out. The house is falling down as nothing has been done to the house since 1995. She gave evidence that the roof leaks and needs replacing. When it rains, she needs to put a bucket in the hallway as water comes through the ceiling. The weatherboards on the outside of the house are also starting to fall off and need replacing. There are holes on the outside of the house and inside the house.
Michelle also gave evidence that she would like to have new furniture as she and Dave are using the same furniture that was in the house when her mother and the deceased owned it. She also requires a new bed as it is very old.
She gave further evidence that she has not had a holiday since 1990, and that she may need a hernia operation in the near future. She would like to have funds available to pay out her mortgage and her personal loan.
[24]
(e) if the applicant is cohabiting with another person - the financial circumstances of the other person
Whilst Robyn had been cohabiting with one of her sons, Rodney, because his property was flooded, he has now moved out of the North Haven property and is living nearby, in rental accommodation. Otherwise, she is not cohabiting with any other person.
[25]
(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated
Robyn has Type 2 diabetes and in examination described herself as a "troubled diabetic", which she explained meant that her doctors were having difficulty controlling her diabetes due to her high stress levels. Additionally, recently she suffered shingles, allegedly also as a result of stress. Hopefully, the stress from which she suffers will be relieved upon the conclusion of the hearing.
On 10 April 2022, she fractured her pelvis and was immobile for eight weeks. She was able to stay at the North Haven property during this period, with assistance from Rodney, and a physiotherapist, who attended upon her for treatment. She had her meals delivered by Meals on Wheels. Neither Rodney nor the physiotherapist gave evidence in the proceedings.
At the hearing, Robyn described herself as "very upset" and "a little unwell today": Tcpt, 30 November 2022, p 14(35-37). Despite the health conditions from which she suffers, she rejected the proposition that she should move into retirement, or assisted living, accommodation, because "I'm quite capable of looking after myself": Tcpt, 30 November 2022, p 19(18-19).
[26]
(g) the age of the applicant when the application is being considered
As stated earlier, at the date of hearing, Robyn was 75 years old.
[27]
(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,
There were financial contributions which Robyn highlighted in her affidavits. In October 2001, she sold her property in Hamilton for $205,000. She received $86,860 of the proceeds of sale. She asserted that she deposited the whole of that amount into a joint Commonwealth Bank Account that she held with the deceased. She asserted that they used the whole of the amount to renovate the kitchen at the North Haven property.
Whilst it is possible that they did so, it seems somewhat unlikely that the whole of the amount was used for that purpose. She also gave evidence that the funds had been used by her and the deceased.
In February 2010, she deposited the funds which she received upon termination of her employment (about $9,000), into the joint Commonwealth Bank Account with the deceased. Finally, she said that had deposited into the joint account an amount of $46,000 (deposited over the course of three years) comprising her superannuation and an amount of $24,254 which she received from the sale of shares she held in NIB in 2016.
In addition, Robyn stated that she made financial contributions to the deceased's estate by making payments for insurance and rates of the North Haven property, as well as the use of shared funds for the costs associated with the renovations and improvements. She said that she assisted in contributing her manual labour to the renovations and repairs of the North Haven property over many years.
Robyn noted that since 2002, she was the sole income earner in their household. If that evidence was intended to mean that she had paid all of the household, and other expenses, that evidence seems implausible.
Michelle disputed that Robyn was the sole income earner. She recalled that the deceased was still working in 2002, and that when he retired in 2003, he had approximately $400,000 in superannuation.
Robyn also did not dispute that the deceased had also received an inheritance from his mother of $60,000 which was used to renovate the North Haven property: Tcpt, 30 November 2022, p 15(12-14).
[28]
(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate
I have referred to the provision made for Robyn in the Will of the deceased. I have also referred to the contributions made by the deceased.
[29]
(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person
I have already dealt with this aspect earlier in these reasons.
[30]
(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so
The deceased and Robyn appear to have pooled their income in order to live. Robyn provided evidence of several purchases she and the deceased made, including a motor vehicle (Subaru Outback) which was purchased in August 1999, an investment property purchased in October 1999, another investment property purchased in April 2004, and another motor vehicle (Toyota Landcruiser) and caravan in 2008.
I have otherwise dealt with this aspect earlier.
[31]
(l) whether any other person is liable to support the applicant
Apart from the Commonwealth government's responsibility to continue to provide her with a pension, there is no other person with a liability to support Robyn.
[32]
(m) the character and conduct of the applicant before and after the date of the death of the deceased person
I am satisfied that there is nothing in Robyn's character and conduct which impacts upon the provision that ought to be made for her out of the estate of the deceased.
[33]
(n) the conduct of any other person before and after the date of the death of the deceased person
I am satisfied that there is nothing in Todd's or Michelle's character and conduct which impacts upon his, and her, competing claim on the bounty of the deceased.
[34]
(o) any relevant Aboriginal or Torres Strait Islander customary law,
This factor was not relevant in these proceedings.
[35]
(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.
I am unaware of any other matter that is relevant that has not been dealt with in these reasons. Merely because specific reference has not been made to facts previously identified should not lead to the conclusion that they have not been fully considered.
[36]
Determination
What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, to my conclusions set out below.
When the Court approaches the question for which s 59(2) of the Act provides, it should place itself in the position of the deceased and consider what he ought to have done, and in this case, actually did, in all the circumstances of the case. The Court treats the deceased as a wise and just, rather than as a fond and foolish, testator: Bosch v Perpetual Trustee Co Ltd; Pontifical Society for the Propagation of the Faith v Scales at 19-20 (Dixon CJ).
Effectively, subject to costs, the testamentary scheme of the deceased provides Robyn with one-third of the proceeds of sale of the North Haven property. On present estimates, her share will be less than $150,000. Upon its sale, she will have no place to live.
Judged by quantum and looked at through the prism of her own financial resources and needs, adequate provision for Robyn's proper maintenance or advancement in life should be seen as not having been made by the Will of the deceased. As stated above, the test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case.
The Court also must have regard to the modest value of the deceased's estate and the competing claims of Todd and Michelle, as other chosen objects, of the deceased's bounty, even though each had been financially independent of, and living away from, the deceased for many years prior to his death.
I am also mindful of the terms of the deceased's Will in which limited provision, in relation to the North Haven property, was made for her and the legitimate expectations that Robyn must have had in circumstances where she was present, with the deceased, when he gave instructions for, and later executed, his last Will. Respect should be given to the assessment of the deceased who not only gave due consideration to the claims on his estate, but also informed, at least Robyn and Michelle, of his intentions in relation to the distribution of the estate.
I am acutely conscious of the fact that Robyn advanced little relevant evidence of the costs of acquiring property, bearing in mind the net value of the deceased's estate, which suited her needs. Nor was there evidence of stamp duty costs, legal expenses on purchase, or removalist costs. Thus, the calculation of the costs of providing for her "needs", was, effectively, unarticulated.
[37]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 December 2022
I do not refer to the resentment of the parties to each other to be critical of any of them. Resentment is common, and often evident, in cases, particularly in claims involving a subsequent spouse and the children of an earlier marriage or relationship, whether either is a plaintiff or defendant.
The hearing was listed for two days, commencing on 30 November 2022. It was finished within one day in circumstances to which I shall later refer. Mr M Maconachie of counsel, instructed by Mr A Maher, solicitor, appeared for the Plaintiff, and Mr G A Rich of counsel, instructed by Mr R Hiatt, solicitor, appeared for the Defendants.
After the conclusion of the hearing, each of the parties was granted leave to file and serve some additional short written submissions, in order to deal with some of the matters the subject of discussion during the oral submissions.
Todd and Michelle, as executors, do not seek any commission, or percentage, for their pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW).
Michelle gave evidence that on 26 December 2018, when at the North Haven property, the deceased had said to her (Affidavit, Michelle Anne Clarke, 19 January 2022 at par 52):
"I am changing my Will because of the reverse mortgage. If the reverse mortgage cannot be paid out, then this house is to be sold and the sale proceeds will be spilt one third to you, one third to Todd and one third to Robyn. Robyn is to get the car, the caravan, any monies in my bank account and any money in my wallet and the furniture in the house. You and Todd get the boat and as for my fishing gear, this is to go to Todd …"
Michelle stated that as the deceased finished talking, Robyn had walked into the room. The deceased left the room and Michelle explained to Robyn what the deceased had been telling her about his Will. The Plaintiff responded "I would like that in writing as I could contest that": Affidavit, Michelle Anne Clarke, 19 January 2022 at pars 53-61.
The conversations referred to by Michelle were not the subject of cross-examination and I accept that each occurred and that they were in the terms stated by her. Nor was Robyn asked any questions about how she knew, at that time, she could contest a Will in those terms.
Todd recalled having a conversation with Robyn shortly after the deceased's death where Robyn said words to the effect of:
"I said to your Dad the only way to get around the reverse mortgage if anything happens to him is to have me on the title with him. Your Dad said that he was not going to do that as it is a Clarke family home and will always be a Clarke family home."
However, in her affidavit in reply, Robyn denied ever having a conversation with Todd of this nature. Whilst neither of the deponents was cross-examined on this evidence, the content of the conversation does seem to be consistent with the testamentary intentions expressed in the deceased's Will.
Naturally, I have remembered that the Court exercises caution in weighing evidence of any alleged, and unrecorded, conversation with a deceased person: Plunkett v Bull (1915) 19 CLR 544 at 548-549; [1915] HCA 14 (Isaacs J).
As Wilcox J observed in Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 at 253; [1992] FCA 806 at [29]:
"[I]t is trite to say that evidence of conversations between a living witness and a dead person should be scrutinised with particular care, especially where there was no occasion for the dead person to record his version of them before his death. Of course, that is not to say that such evidence cannot be true; it obviously may. But it does mean that any matter adversely affecting the credit of the witness has special importance; the witness cannot be refuted in the usual way."
There was no suggestion, by Todd and Michelle, and nor could there be, that there had been any binding promise that would be breached if Robyn brought proceedings for a family provision order in the face of the expressed testamentary wishes of the deceased made to her. It seemed to be put, however, that the legitimate expectations of each of Robyn, Todd and Michelle, as to the entitlement to his property on the death of the deceased, was as set out in the Will, as each of, at least Robyn and Michelle, had been informed of its terms by the deceased.
What also seems to have been submitted was that there had been a common understanding, between Robyn and the deceased, which was relevant to the discretion to be exercised by the Court. How precisely that would be done was left unexplored.
As was recently written in Re Stojanovska; Stojevski v Stojevski [2020] VSC 702 at [57] (Englefield JR):
"The impact of unfulfilled promises or disappointed expectations may sometimes be relevant when a family provision claim reaches the stage that the moral duty of the deceased is under consideration …" (citations omitted)
What was written by Englefield JR echoed the view expressed by Brereton J in Vukic v Luca Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [38]:
"Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant [Re Anderson (deceased) (1975) 11 SASR 276, 284; Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 148]. This is particularly so where a claimant has relied to his or her detriment on any such promise or expectation."
In Steinmetz v Shannon (2019) 99 NSWLR 687 at 712 [112]; [2019] NSWCA 114 at [112], his Honour wrote:
"… arrangements and understandings made between a testator and potential beneficiary are not irrelevant in determining what may be proper for the beneficiary's maintenance and advancement. Representations made by testators have always been regarded as relevant to the ascertainment of what is proper provision. Thus, it seems to me that a well-established and long-standing understanding between a testator and potential beneficiary, properly informed, could well be relevant in assessing what is proper provision for that beneficiary." (citations omitted)
(It is clear, as a result of the events that have occurred after the death of the deceased, and despite efforts made by Robyn, prior to the hearing, to obtain finance to enable her to retain the North Haven property, it will have to be sold and that, on its sale, she will need somewhere to live. It follows that at least, $96,737 constitute the liabilities (other than any costs, if any, are ordered to be paid out of the estate), which must be paid out of the deceased's estate.)
The asset about which no agreement was able to be reached was the car which had been left to Robyn. It was, however, agreed that it had a value of $40,000. She said it was jointly held property that passed to her by survivorship.
There was no dispute that Robyn had retained possession of the car and that, following the death of the deceased, she had requested that Todd and Michelle take steps to transfer the vehicle into her name, with which request they complied, signing the transfer documents from the deceased's name into her name. Nothing much will turn on this dispute since (a) it was part of the bequest made to Robyn in the deceased's Will, and (b) it forms part of her property which has been disclosed. As it is a 2020 Subaru Forrester car, presumably, she does not have a need for another car.
The net value of the estate, at the date of the Schedule, omitting any reference to the costs of the proceedings, is, therefore, estimated to be $563,272, of which $553,563 would constitute the notional proceeds of sale of the North Haven property. (It follows that, without deduction of any costs of the proceedings, Robyn's share, under the terms of the Will, would have been $184,521.)
Whilst fully contested applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end result, there is nothing in the Act that excludes the possibility that orders for further provision will be made from a small estate: Morris v Smoel [2014] VSC 32 at [68]. The Court must still consider all the relevant circumstances before a decision is made: Re Coventry (Deceased) [1979] 3 All ER 815 at 820-821; Alcock v Cooper [2010] SASC 167 at [39] (Lunn J).
Furthermore, particularly in estates of modest value, the court (and lawyers acting for parties), should be careful not to foster the proposition that obstinacy and unreasonableness will not result in an order for costs: Dobb v Hacket (1993) 10 WAR 532 at 540 (albeit in that case, the statement was made in the context of a refusal of reasonable offers of settlement).
The Plaintiff's costs, calculated on the indemnity basis, were estimated to be $66,000, and, if calculated on the ordinary basis, to be $44,000 (in each case, inclusive of GST and based upon a hearing of two days duration). The Plaintiff has paid $1,596, being the filing fee for the Summons ($1,196) and the filing fee for a notice of motion ($427).
(The notice of motion was brought seeking an order that a solicitor be restrained from representing the Defendants in the proceedings and consequential claims for relief. It was dismissed on 7 April 2022 with no order as to the costs of either party, to the intent that she and they would pay her, and their, own costs, respectively.)
The Defendants' costs, calculated on the indemnity basis, were estimated to be between $100,000 and $105,000 (inclusive of GST and based upon a hearing of two days duration). The Defendants have not paid any costs out of the estate or otherwise.
Counsel for Robyn submitted, in writing, that:
"14. There is nothing about this case that could justify an estimate of costs exceeding or even approaching $100,000.
15. Costs are likely to be a considerable impediment to Robyn being adequately provided for from the Deceased's estate.
16. This matter is not complex, either in terms of the facts or the applicable law. Costs should be capped in order to ensure that Robyn is not left without adequate provision."
Robyn sought an order capping the costs that may be recovered by Todd and Michelle in circumstances including, but not limited to, cases in which the net distributable value of the estate (excluding costs of the proceedings) is less than $500,000. Reference will also be made to s 98(4) of the Civil Procedure Act 2005 (NSW).
Todd's and Michelle's costs seem to be on the high side, having regard to the need to conduct the proceedings "with a keen eye to the minimisation of costs at all stages" to which Allsop P referred in Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316 at [3], referred to in Ibrahim v Nasr [2021] NSWSC 1321 at [61] (Leeming JA).
Counsel agreed, and both submitted, at least initially, that the Court should not determine as part of these written reasons, how the costs of the proceedings should be borne. They submitted that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.
However, as I understood it, during oral submissions, the legal representatives of the parties agreed that Robyn's costs, calculated on the ordinary basis, should be taken to be $30,000, and Todd's and Michelle's costs, calculated on the indemnity basis, should be taken to be $90,000. Thus, the total costs of the proceedings should be taken to be $120,000.
Noting that the deductions referred to above ($96,737) and the costs of the proceedings ($120,000), the total liabilities of the estate will be $216,737. Therefore, the net distributable estate, out of which an order for provision may be made, will be about $443,272. If the estate, then, were to be distributed in accordance with the terms of the deceased's Will, the distribution in accordance with the terms of the deceased's Will, each of the three parties would receive a lump sum of $144,521.
The deceased and Robyn remained married at the time of the deceased's death. It was, therefore, a relationship spanning about 25 years, with a marriage of about 16 years. They had a close and loving relationship, and Robyn had made contributions, both financial and otherwise, to the conservation and improvement of the North Haven property, and to the welfare of the deceased. I shall return to the contributions later in these reasons. This is not a case where Todd or Michelle raised any allegations of mistreatment of the deceased by Robyn.
The deceased also made significant contributions to his, and Robyn's, lives together. There was evidence that when he retired, the deceased had received superannuation of about $400,000 (Tcpt, 30 November 2022, p 11(23-42)), all of which appears to have been expended during the marriage.
At the time the deceased and Robyn met, each of Todd and Michelle were adults and living away from the deceased's home. Each had a good relationship with the deceased: Tcpt, 30 November 2022, p 17(41-43).
In March 2021, the North Haven property flooded. During the flood, it suffered significant damage, with water coming through the property at about two feet deep. The deceased was not insured for flood damage as the insurance was too expensive. As a result of the flood, the walls of the property became mouldy and much of the furniture and personal belongings were damaged and were unsalvageable.
Robyn did receive some limited financial assistance through various organisations for the repairs to the North Haven property. She did not disclose how much she had received or how it had been spent.
After the flood, the deceased and Robyn lived with Todd and his wife. She continued living with them for approximately two months after the deceased died. Subsequently, she returned to the North Haven property.
Robyn did not identify any form of relief that demonstrated a consideration of Todd and Michelle, who are also chosen objects of the deceased's bounty, and to whom the deceased also owed an obligation or responsibility. The Court may, and, almost universally, does, have regard, to "the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate": s 60(2)(b) of the Act.
There was discussion about a family provision order increasing the percentage of the net proceeds of sale that Robyn ought to receive. The following exchange took place at the commencement of the hearing at Tcpt, 30 November 2022, p 6(3-30)):
"HIS HONOUR: … Under the terms of the will, the parties share the effectively - I'll treat it just as the proceeds of the North Haven property in percentages, that's … a third. Should additional provision be made, would it be better to do it by way of percentage so, for example - don't draw any conclusions anyone - but for example, that instead of 33.3%, the plaintiff would receive X per cent. Then the defendants would receive the balance divided by two, percentage-wise. That way if the value of the property is more everyone benefits, if the value of the property is less everyone suffers the detriment.
RICH: We're working on the basis and think it's probably easier to work on percentages.
HIS HONOUR: That would certainly be my view because that would be the fairest to all of the parties.
MACONACHIE: I was minded to say the plaintiff would probably be most comfortable with a figure but--
HIS HONOUR: That might be, Mr Maconachie, but that might be unfair to her. What happens if, for example, the property is not sold for $650,000 but is sold for $800,000. If I give her a dollar sum based upon a property worth $650,000 she may be greatly prejudiced, and vice versa if the property were sold for $500,000 instead of $650,0000 then the defendants would be equally. So, you might want to get some instruction.
MACONACHIE: My instructions have already overridden the information I had. My instructions are that a percentage is preferable."
During the oral submissions, after the evidence was completed, the Court raised different alternatives that may provide adequate and proper provision for Robyn. So that the legal representatives had an opportunity to consider what had been raised, I permitted further submissions, in writing to be provided.
By email sent to the Court on 7 December 2022, counsel for Robyn stated, somewhat unhelpfully, that "the Plaintiff does not propose to put on further submissions". As the date of this email was after the further submissions of counsel for Todd and Michelle had been served, I inferred that he did not wish to reply to those further submissions, to which I shall next refer. The failure to respond to additional submissions, regrettably, confirms that there was no modification of Robyn's position.
Counsel for Todd and Michelle, initially, had submitted in writing:
"The provision made for the deceased of one third of the net assets is an asset which will comfortably assist the plaintiff in meeting her needs, rent and other outgoings. It is not an asset to be ignored or preserved untouched when contending that the income after her expenses including rent would be reduced. The costs of the application made by her has resulted in a reduction of the value of the estate otherwise available to her.
The provision made in the Will, was carefully considered by both the plaintiff and the deceased, agreed jointly with the plaintiff and represents reasonable and adequate provision out of the estate of the deceased."
However, during submissions, in the Court's exchanges with counsel, a more modified position was accepted as being provision that might be regarded as adequate provision for the proper maintenance or advancement in life of Robyn. It appeared to be conceded that additional provision ought to be made for her.
Subsequently, in further written submissions sent to the Court on 5 December 2022, counsel for Todd and Michelle wrote:
"1. The defendants recognise that it is appropriate that further provision be made out of the estate for the plaintiff to provide her with reasonable and proper accommodation and for her use for contingencies or for her enjoyment of life.
2. The issue of what would be "proper and reasonable", is a matter which must be considered in light of the nature and extent of the estate, the testamentary intentions of the deceased, including those intentions when the property needs to be sold and importantly, the age and health of the plaintiff. In this regard the plaintiff is 75 years of age, in poor health suffering from complicated diabetes and having recently sustained a fractured hip.
3. The defendants understand and accept her evidence that accommodation in a caravan or a relocatable style home is not accommodation which she would choose.
4. The defendants in respect to the options canvassed by the Court with the parties, consider that the following options would enable proper and reasonable provision to be made for the plaintiff.
Option 1
1. The property at North Haven be sold and, after the payment of;
a. The mortgage currently approximately $65,500
b. The legal costs of administration agreed at $ 8,000
c. The costs of and incidental to the sale including advertising and commission and agents commission estimated and agreed at approximately $23,000 [sic].
d. The legal costs of the plaintiff agreed at $30,000 inclusive of GST.
e. The legal costs of the defendant agreed at $90,000 inclusive of GST, the net proceeds be applied as follows.
i. $40,000 by way of a bequest to the plaintiff for contingencies.
ii. 45% of the balance to the plaintiff.
iii. 55% of the residue equally to each of the defendants.
f. The benefit of this;
i. Provides the plaintiff with a lump sum for contingencies together with a significant lump sum to enable her, in combination with her other income, to rent appropriate accommodation and meet her other normal outgoings.
ii. Enable the parties to sever their relationship, which would presumably be beneficial to both parties.
Option 2
If the Court however considered that it may be possible for the plaintiff to acquire a suitable property on terms but may need a larger accommodation fund, the defendants submit that the following provision would be appropriate.
1. The property known as [the North Haven property] be sold forthwith and after the payment of:
i. The outstanding balance of the mortgage to CBA (currently approximately $65,500)
ii. The agent's commission and disbursements and legal costs of sale (estimated at $23,500).
iii. The legal costs of the administration of the estate of $8,000.
iv. The legal costs of the plaintiff of these proceedings agreed at $30,000.
v. The legal costs of the defendant of these proceedings agreed at $90,000;
the net proceeds shall be held by the defendants and,
a. $40,000 shall be paid to the plaintiff, as a bequest for her benefit absolutely and
b. The residue, referred to as "the accommodation fund", shall be held in trust to purchase a residential property, other than a relocatable home or caravan ("the primary property"), selected by the plaintiff, as tenants-in-common as to 1/3 for the plaintiff, 1/3 to the first defendant and 1/3 to the second defendant.
c. If the purchase price of the primary property is less than the accommodation fund, the surplus shall be distributed to Robyn and to each of the defendants equally.
2. Robyn shall have the exclusive use of the primary property during her life or until such time as she shall die or permanently vacate it provided that, if she shall determine that as a result of changed circumstances, that she wishes to live in a retirement village or residential care, the primary property shall be sold and, the proceeds applied towards the payment of any entry bond/deposit on such substituted accommodation (the "substituted accommodation") and;
i. All fees including departure fees/exit fees and/or daily rates payable for the accommodation of the plaintiff to be paid by the plaintiff.
ii. The plaintiff to irrevocably direct that the repayment of any bond/deposit, following the termination of her occupancy, be paid and payable as to 2/3 to the defendants and 1/3 to the plaintiff or her estate.
iii. If the bond/deposit of any substituted property, shall be less than the amount then held in the accommodation fund, the balance shall be distributed forthwith to the plaintiff and the defendants as to 1/3 each.
3. Despite paragraph 2 above, nothing would preclude the plaintiff moving directly into a retirement village or residential care.
4. During the occupancy of any property, the plaintiff shall pay all rates, taxes and insurance premiums on the property and keep it in good and proper repair and shall provide evidence of the currency of insurance to the defendants.
5. During the occupancy of the primary property, the defendants shall not commence or maintain any claim pursuant to s66G of the Conveyancing Act 1919.
6. If the plaintiff is unable or unwilling to purchase a suitable property within 6 months of the sale of North Haven, the accommodation fund shall be distributed;
i. $100,000 each to Todd Clarke and Michelle Clarke and,
ii. The balance to Robyn.
7. If the plaintiff shall contribute the whole or any part of the bequest referred to in para 1a, towards the purchase of the primary property, such further contribution shall result in an appropriate adjustment to her ownership share."
(In the supplementary written submissions, I have treated the reference to "proper and reasonable", in counsel's submissions, to be a reference to the terms of the Act, which refer to "adequate provision for the proper maintenance, education or advancement in life" of Robyn.)
From the above submissions, it appears that there will be an estate of insufficient amplitude, in value, to accommodate all of the claims made on the bounty of the deceased. It is a case where the Court is faced with the all too common problem of seeking to resolve a claim for provision out of an estate of wholly inadequate value.
In the Court of Appeal, Basten JA, in Foley v Ellis [2008] NSWCA 288 at [3], wrote that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Kay v Archbold [2008] NSWSC 254 at [126], White J wrote that the assessment of what provision is proper involved "an intuitive assessment". Stevenson J has described it as "an evaluative determination of a discretionary nature, not susceptible of complete exposition" and one which is "inexact, non-scientific, not narrow or purely mathematical, and fact and circumstance specific": Szypica v O'Beirne [2013] NSWSC 297 at [40].
Under both s 59(1)(c) and s 59(2) of the Act, the time at which the court gives its consideration to the question is the time when the court is considering the application.
"Provision" is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34], that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". It also permits consideration of future requirements for support and assistance. Contingent events may be taken into account, as well as what may be considered certain, or exceedingly likely to happen. Reasonable foresight of eventualities that may arise should also be considered.
Neither are the words "maintenance" and "advancement in life" defined in the Act. However, in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, Callinan and Heydon JJ, at [115], wrote, of the words 'maintenance', 'support' and 'advancement':
"'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education."
In In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77, King CJ wrote:
"The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang (1960) 104 CLR 124, per Dixon CJ at p. 128."
In Mayfield v Lloyd-Williams [2004] NSWSC 419, White J noted at [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."
The word 'adequate' connotes something different from the word 'proper'. 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of the maintenance, education and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72] and at [77] (Buss JA).
Each of the words were considered by Lord Romer in delivering the advice of the Privy Council in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476:
"The use of the word 'proper' in this connection is of considerable importance. It connotes something different from the word 'adequate'. A small sum may be sufficient for the 'adequate' maintenance of a child, for instance, but, having regard to the child's station in life and the fortune of his father, it may be wholly insufficient for his 'proper' maintenance. So, too, a sum may be quite insufficient for the 'adequate' maintenance of a child and yet may be sufficient for his maintenance on a scale that is 'proper' in all the circumstances."
Dixon CJ and Williams J, in McCosker v McCosker (1957) 97 CLR 566 at 571-572; [1957] HCA 82, after citing Bosch v Perpetual Trustee Co Ltd, went on to say of the word 'proper' that:
"It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement if life must be considered in the light of the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent."
In Goodman v Windeyer (1980) 144 CLR 490, Gibbs J wrote at 502:
"[T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards."
In Vigolo v Bostin, at [114], Callinan and Heydon JJ wrote:
"[T]he use of the word 'proper'...implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a court to have regard to a promise of a kind which was made here...The use of the word 'proper' means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."
The use of the word 'proper' thus requires consideration to be given to more than satisfying the basic needs of an applicant: Butcher v Craig [2010] WASCA 92 at [21] (Pullin and Newnes JJA and Murphy J); Devenish v Devenish [2011] WASC 129 at [73] (Pritchard J).
Whilst the statutory formula referred to in s 59 makes no reference to 'need', but rather refers to adequate provision for the proper maintenance, education or advancement in life, whether the applicant has a 'need' is a relevant factor. Its meaning takes colour from its general and specific context. It is an element in determining whether 'adequate' provision has been made for the 'proper' maintenance education and advancement in life of the applicant in all of the circumstances: Collins v McGain [2003] NSWCA 190 at [42] (Tobias JA, with whom Beazley and Hodgson JJA agreed).
Tobias JA, in that case, wrote at [42] and [47]:
"There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.
…
As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is 'proper maintenance etc' of the eligible person. It is the cause of that context that, in the present case, the 'proper maintenance etc' of the appellant required consideration to guard against the contingency to which I have referred."
In Devereaux-Warnes v Hall [No 3] at [81]-[84], Buss JA wrote:
"The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources. See Singer per Gaudron J at 227.
'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc. See Gorton v Parks (1989) 17 NSWLR 1 per Bryson J at 10-11.
The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant's 'needs' that cannot be met from his or her own resources on the other. See Hunter per Kirby P at 575.
Although the existence or absence of 'needs' which the claimant cannot meet from his or her own resources will always be highly relevant and, often, decisive, the statutory formulation, and therefore the issue in every case, is whether the disposition of the deceased's estate was not such as to make adequate provision for his or her proper maintenance, etc. See Singer per Gaudron J at 227. Compare Gorton per Bryson J at 6-11; Collicoat v McMillan [1999] 3 VR 803 per Ormiston J at 816 [38], 820 [47]."
'Need', of course, is a relative concept: de Angelis v de Angelis [2003] VSC 432 at [45] (Dodds-Streeton J). It is different from 'want' or 'desired' and suggests that which is 'required'. The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 52 at [54]:
"'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely 'want', but it falls far short of 'cannot survive without'."
In Boettcher v Driscoll [2014] SASC 86, David J, at [41], added:
"'Need' is not so synonymous with 'want' such that the two are interchangeable."
In the event that the Court is satisfied that the power to make an order is enlivened then, the Court determines whether it should make an order, and if so, the nature of any such order, having regard to the facts known to the court at the time the order is made.
The decision involves an exercise of discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order even though the jurisdictional question has been answered in the applicant's favour.
The discretion should be exercised carefully and conservatively by reference to the provision that the Court considers would be made by a wise and just testator or testatrix. The standards of the wise and just testator, or testatrix, of today, not of an era ago, are pertinent to that assessment: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 28.
I shall refer to s 60 of the Act explicitly, later in these reasons. Section 60(2) enumerates 15 specific matters which the court may take into account, together with the catch all phrase in (p), "any other matter the court considers relevant", for the purposes of determining eligibility, whether to make a family provision order, and, if so, the nature of any such order. There is no hierarchy as between the various factors. The weight to be attached to each of them is likely to differ depending upon the individual circumstances of the particular case. Nor is there a mandatory command to take into account any of the matters enumerated. None of the matters differentiate in their application between classes of eligible person or types of relationship. Similarly, there is no distinction based on gender.
Considering each of the matters does not prescribe a particular result, and whilst there is likely to be a substantial overlap in the matters that the court may take into account when determining the answers to what is posed in s 60(1), those matters are not identical. Furthermore, consideration of some of the matters in s 60(2) not only permits, but requires, a comparison to be made between the respective positions of the applicant and of other eligible persons as well as of the beneficiaries, whilst others do not. Importantly, also, many of the matters in sub-s (2), of themselves, are incapable of providing an answer to the questions posed in s 60(1).
Leaving aside the question of eligibility, the matters referred to in s 60(2) may be considered on "the discretionary question", namely whether to make an order and the nature of that order. Importantly, under s 60(2), attention is drawn to matters that may have existed at the deceased's death, or subsequently. This does not mean, however, that some of the matters referred to in s 60(2) will be irrelevant to the jurisdictional question to be determined.
Section 65(1) of the Act requires the family provision order to specify:
1. the person or persons for whom provision is to be made;
2. the amount and nature of the provision; and
3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided; and
4. any conditions, restrictions or limitations imposed by the court.
The order for provision out of the estate may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
Section 66 of the Act sets out the consequential and ancillary orders that may be made.
Any family provision order under the Act will take effect, unless the court otherwise orders, as if the provision was made in a codicil to the will of the deceased, or in the case of intestacy, as in a will of the deceased (s 72(1) of the Act).
In Goodsell v Wellington [2011] NSWSC 1232 at [108] I wrote that:
"Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
Pembroke J wrote in Wilcox v Wilcox [2012] NSWSC 1138 at [23]:
"The court does not simply ride roughshod over the testator's intentions... The court's power to make an award is limited. The purpose of the discretionary power under Section 59(1) is to redress circumstances where 'adequate provision' has not been made for the 'proper maintenance, education or advancement in life' of the claimant. The adjectives 'adequate' and 'proper' are words of circumspection."
In Slack v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127], White J wrote:
"In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed: Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]. This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will.
In Sgro v Thompson [2017] NSWCA 326, White JA (with whom each of McColl JA and Payne JA agreed) wrote (at [86]):
"I adhere to the view I expressed in Slack v Rogan; Palffy v Rogan. To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
Yet, whilst freedom of testamentary disposition is not to have "only a prima facie effect, the real dispositive power being vested in the court": Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; [1962] HCA 19, s 59 is not confined by notions of reluctance to interfere with that freedom, in Steinmetz v Shannon at [51], White JA, although partially disagreeing with the majority, wrote that he:
"did not say that wherever it can be seen that the deceased was capable of giving due consideration as to the adequacy of the provision in the will for a claimant and did so, that that was determinative of a claim for provision"
and at [54], that
"[t]he issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death".
His Honour also wrote, at [56]:
"To say that a Court's ability to interfere may be constrained by freedom of testamentary disposition is merely to say that such freedom is one of the matters factored into the assessment called for by s 59. It is factored in by a recognition that in appropriate cases, deference should be given to the testator's better position in making an assessment as to what provision for proper maintenance and advancement in life is adequate."
Equally significant is what Brereton JA wrote in Steinmetz v Shannon, at [90], namely that the freedom of testamentary disposition "will have importance chiefly where a testator, faced with multiple obligations and an estate insufficient to meet them all in full, has had to make a difficult judgment as to which will be satisfied and to what extent".
The Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair.
In considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unrep); Vigolo v Bostin at [11]; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
The following principles are particularly relevant to a claim by a widow of the deceased:
1. Whilst there is no rule that the widow's claim is always paramount, a wife, particularly of many years, has a right to be considered by her husband, but the extent that he should provide for her is to be governed by her needs, both at present, and in the foreseeable future. It is also governed by the claims and circumstances of the competing claimants, whose positions also have to be weighed with their needs and merits: Bladwell v Davis [2004] NSWCA 170, per Bryson JA, with whom Ipp JA concurred.
2. Yet, by way of qualification, and in the absence of special circumstances, broadly speaking, the general duty of the deceased to his widow, to the extent to which his assets permit him to do so, is to ensure that she is secure in the matrimonial home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her mind from any reasonable fear of any insufficiency as she grows older and her health and strength fail: Permanent Trustee Co Ltd v Fraser at 47 (Kirby P). Concern as to the capacity of the widow to maintain herself independently and autonomously may also bear upon the notion of what is proper provision.
The Court of Appeal approved the broad proposition in O'Loughlin v O'Loughlin [2003] NSWCA 99. However, the principle is not one of immutable application: Marshall v Carruthers [2002] NSWCA 47; Clifford v Mayr [2010] NSWCA 6 at [142]-[144] (Campbell JA with whom Young JA and Handley AJA agreed).
1. The three elements identified in (b) above are not necessarily mutually independent. While an applicant's standard of living during the lifetime of a deceased may be a useful yardstick, it is not necessarily decisive as to what would be an appropriate provision for them in the future: Grainger v The Public Trustee (Supreme Court of Western Australia, Steytler J, 6 December 1995, unreported) at 18; Welsh v Mulcock [1924] NZLR 673 at 687 (Salmond J); Pogorelic v Banovich [2007] WASC 45. The court is not to approach the assessment of what is proper by attempting precisely to replicate the way of life that the deceased and the applicant widow planned to have had he survived: Neil v Jacovou [2011] NSWSC 87 at [163].
2. There remains binding authority which gives greater weight to the claims of parties who have entered "a formal and binding commitment to mutual support": Marshall v Carruthers at [63]; Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308; Sellers v Scrivenger [2010] VSC 320 at [68] (Daly AsJ). In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [24], Gleeson CJ wrote:
"The structure of marriage and the family is intended to sustain responsibility and obligation."
This accords too, with what Hodgson JA wrote in Marshall v Carruthers at [63]:
"In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim."
In Cropley v Cropley [2002] NSWSC 349, Barrett J wrote at [56]:
"When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow's claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in aid of an adult child. That a widow's claim to maintenance out of the estate of her deceased husband is a claim which is 'paramount' and 'of a high order' is borne out by the judgments of Sheller JA in Sayer v Sayer [1999] NSWCA 340 (Davies AJA concurring) and Blackmore v Allen [2000] NSWCA 162 (Priestley JA and Foster AJA concurring)."
However, in Bladwell v Davis, Bryson JA (albeit obiter, as leave to appeal was refused) stated at [19]:
"In the application of the test in s 7, and of the exposition thereof in Singer v Berghouse by Mason CJ, Deane and McHugh JJ at 409 -411 it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse, in full and with reference to the instant facts. Defeat of the opponents' claims does not necessarily follow from a demonstration, which the claimant can make, that all her needs with respect to income, home renovation, and provision for contingencies cannot be met if any provision is made for the opponents; indeed she could well demonstrate that even if the provisions of the will took effect without any modification, the provision for her is not adequate. That is not a demonstration that no claim by an eligible person can succeed; the claims and circumstances of the opponents also have to be weighed, and they too have their needs and merits."
Ipp JA added at [2]:
"I would add, however, that where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
Bladwell v Davis was referred to, with approval, by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [80]-[82].
1. Where, after competing factors have been taken into account, it is possible to do so, a widow ought to be put in a position where she is mistress of her own life, and in which, for the remainder of her life, she is not beholden to executors, or trustees and, still less, to remaindermen: Langtry v Campbell (7 March 1991, Powell J, unreported) at 29.
2. The capacity of the widow, herself, to provide for her own needs must also be considered. In Re Crewe, Crewe v Corbett [1956] NZLR 315 at 323, it was said:
"It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime, or would have been so accustomed to if her husband had then done his duty to her."
1. Usually, a mere right of residence will be an unsatisfactory method of providing for a widow's accommodation. This is because a widow may be compelled, by sickness, age, urgent supervening necessity, or otherwise, with good reason, to leave the residence. The widow will then be left without the kind of protection which is normally expected should be provided by a deceased who is both wise and just: Moore v Moore (NSWCA, 16 May 1984, unreported) at 2 (Hutley JA); Golosky v Golosky [1993] NSWCA 111.
2. That provision of a capital asset to an applicant may, incidentally, enable her, or him, in due course, to pass that asset to others contrary to the wishes of the deceased, is not determinative of the propriety of such provision: Salmon v Blackford [1997] NSWCA 274 at 6.
3. Like all cases under the Act, what is adequate and proper provision is necessarily fact specific. In McKenzie v Topp [2004] VSC 90, Nettle J considered the claim of a stepson of the deceased to her estate, the applicant's father having previously left his entire estate to the deceased. At [58], his Honour observed:
"For just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors."
1. Not infrequently, the jurisdiction of the court to interfere with the deceased's testamentary intentions, comes to be exercised upon the application of a spouse, of advanced age, and in circumstances where tensions arise between other family members as to the real probable beneficiaries in the event that an order be made and that the applicant's remaining number of years may prove to be relatively short. Whilst such tensions sometimes provide, at least, part of the backdrop and reasons for the respective stances taken in the litigation, the task of the Court is, no more and no less, than to exercise its jurisdiction in accordance with the Act: Hertzberg v Hertzberg [2003] NSWCA 311 at [44] (Einstein J).
This tension often presents a fundamental division on the question whether adequate provision requires an interest less than an absolute interest, namely a life interest, or Crisp order, in the property of the deceased.
I make it clear that I do not intend what I have described as "applicable legal principles" and also the "guidelines" set out above, to be elevated into inflexible rules of law. It is to be emphasised that preconceptions and predispositions are dangerous in this area. The principles are subject, always, to the consideration of the highly individual circumstances of each case being decided, including the value of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased. I identify them merely as providing useful assistance in considering the statutory provisions, the terms of which must remain firmly in mind.
The guidelines "also provide the additional benefit of affording a certain amount of consistency in decision-making, and indication of expectations and advice to litigants. Without such guidelines, decision-making and advising in this field becomes a morass of idiosyncratic decisions devoid of any consistency": Steinmetz v Shannon at [108] (Brereton JA).
The importance of these qualifications have been stressed in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [18]-[19] (Basten JA), [66]-[67] (Barrett JA, Gleeson JA agreeing); in Burke v Burke [2015] NSWCA 195 at [84]-[85] (Ward JA, Meagher and Emmett JJA agreeing); in Yee v Yee [2017] NSWCA 305 at [172] (McColl JA, Gleeson and Simpson JJA agreeing); and in Steinmetz v Shannon at [37] (White JA). They must be remembered.
On occasions, Todd and the deceased would have Christmas together. Todd stated that he would always invite the deceased and Robyn for Christmas lunch.
Todd would see the deceased on his birthday, and if he could not visit, he would always call the deceased. This would happen for the deceased's birthday, Todd's birthday and his wife and children's birthdays.
After the floods, the deceased and Robyn lived with Todd and his family. Robyn continued to live with Todd for approximately two months after the death of the deceased.
Michelle gave evidence that she, also, had a close and loving relationship with the deceased. Michelle lived with her parents in a house in Telarah since she was three years old, and she remains living in the house to this day.
Michelle was her mother's primary carer during the period she was battling cancer, as the deceased still had to work. She stated that she was there for her mother and for the deceased. She would do the cooking, cleaning and mowing the lawns.
Michelle and her partner, Dave, purchased the Telarah property from the deceased in November 2002 for $120,000. The house was registered in both names. The deceased loaned them the $120,000 to purchase the house from him, and they repaid the loan to the deceased by paying him $250 per week. Sometime in 2004, the deceased asked Michelle and Dave if they could obtain finance from a bank so they could repay the whole of the amount of money they loaned from him in a lump sum.
Michelle and Dave were able to obtain finance and they borrowed the amount of $168,000 by taking a mortgage over the Telarah property in about January 2005 and they repaid what they owed to the deceased. In 2013, the house was placed in Michelle's name only, at which time, she refinanced the loan.
The deceased became ill in early 2003 and had a triple by-pass operation in April 2003. The deceased was still living at the Telarah property at the time, but after the operation, he went to live with Robyn at the North Haven property. The deceased stopped working and retired after the operation.
After the deceased moved to the North Haven property, Michelle would call the deceased regularly and visit him a few times a year. She had every Christmas with the deceased at the North Haven property until 2018, when she spent Christmas with Dave at their house in 2019 and 2020. They also visited the deceased at the North Haven property for Easter on a number of occasions.
Michelle remained in contact with the deceased on the telephone, either weekly or fortnightly.
In view of the subsequent submissions of Todd and Michelle, it is unnecessary to use those examples as providing the cost of accommodation.
Ultimately, whilst the evidence was limited, it is sufficient to provide some guidance in determining the provision that should be made in favour of Robyn.
I turn then to the financial resources of Todd and Michelle, respectively.
Todd gave the following evidence, which was updated, about his assets and liabilities
Assets
Description Value
Property at Scarborough Way, Dunbogan (held as joint tenants with Stephanie Clarke) $750,000 (50% being $375,000)
2010 Mazda CX7 $ 10,000
Bank account $ 2,000 (approx)
Superannuation $ 67,188
Liabilities
Description Value
Home Loan- Mortgage $531,000 (50% $260,500)
Personal loan $4,000
Michelle had also paid the deceased a lump sum of over $90,000, in 2005, in repayment of the amount that she and Dave had owed the deceased. The deceased had also received about $70,000 in about 2005.
In her affidavit made 7 February 2022, Robyn had stated that she did not know how much superannuation the deceased had when he retired, although she recalled that it ran out and was all spent by about 2010 or 2011. However, in cross-examination, she was told that her counsel had informed the Court that she did not dispute the deceased had contributed his superannuation of $400,000, a matter which she did not dispute: Tcpt, 30 November 2022, p 15(5-10).
As will have been read, there was no substantial amount of cash that formed part of his estate at the time of the deceased's death. I am satisfied that the deceased made a significant financial contribution of funds that he had received to fund their day-to-day expenses.
Of course, the deceased provided accommodation to Robyn in the North Haven property since she moved in. She has stayed in the North Haven property rent, and occupation fee, free, since the death of the deceased, other than when the property was flooded. Of course, she had the right to do so under the terms of the deceased's Will.
Robyn also highlighted a number of non-financial contributions in her affidavits, particularly the care she provided to the deceased, and his mother.
In particular, she wrote that after the deceased had his triple bypass operation, in around 2003, he immediately retired from work and moved into the North Haven property, at which time Robyn took time off work to be with the deceased and to care for him.
Robyn performed most of the housework, although the deceased assisted at times when he was able. After the deceased's surgery, he was limited in what physical work he could do, and although he mowed the lawns on some occasions, as time passed, Robyn's son would mow the lawns and attend to the more physical work.
In late 2004, the deceased's mother, Edna, moved into the North Haven property due to a deterioration in her health. Robyn received a carer's allowance for part of the period in which Edna lived with Robyn and the deceased in the amount of $100 per fortnight. Robyn assisted Edna with many things, including around the house, but also driving her to appointments and social outings.
I accept Robyn's evidence of these non-financial contributions made by her.
Naturally, I have also considered the submission made on behalf of Todd and Michelle that Robyn could live in suitable rental accommodation and that the provision made for her in the deceased's Will would enable her to do so. However, I reject the submission which would require her to use all of the capital sum she would receive to pay for rental accommodation as that would not be "proper" in all the circumstances of the case. I have provided for that contingency, in what is set out below, if she chooses to follow that course. Nor do I think she should be left with the possibility of having to relocate at the end of each fixed term tenancy.
Bearing in mind the matters for consideration, I am of the view that the provision made for Robyn in the deceased's Will was neither adequate nor proper. It did not take into account the possibility that alternative accommodation might be required by her. The limitations placed upon her right of accommodation, in the events that have occurred, require the sale of the North Haven property with the consequence that she will no longer have any accommodation. She has limited funds for the exigencies of life and one-third of the net proceeds of sale will not go far enough in providing for her needs.
Whilst there is no general rule that the widow's right is in all cases paramount, it seems to me that here, despite the value of the estate being modest, Robyn does require reasonable security of accommodation and a small capital sum for the exigencies of life. There was unchallenged evidence that she has limited assets, and an income that is just sufficient to meet her needs. Her income is by way of social security payments. She has no earning capacity.
Counsel for the parties were not far apart on the quantum of the lump sum for the exigencies of life. Counsel for Robyn orally submitted that the range was between $30,000 and $50,000 (Tcpt, 30 November 2022, p 45(1-11)), whilst counsel for Todd and Michelle orally submitted that it was between $30,000 and $40,000. I have already referred to later written submissions received from counsel for Todd and Michelle.
In my view, the lump sum to be provided to Robyn, absolutely, for exigencies of life, should be $40,000. Of course, in providing that lump sum, there will be a corresponding reduction of the balance of the net proceeds of sale. It seems likely that there would then be left about $393,563. It is far from a large estate.
However, I am not persuaded that Robyn should receive all of the proceeds of sale of the North Haven property absolutely. In this regard, it is to be noted, particularly, that the marriage was for a period of about 16 years, (although the relationship was longer) and not for decades, with children being raised; it was a second marriage for both Robyn and the deceased; the North Haven property was gifted to the deceased before the commencement of any relationship between them, and, therefore, the case can be distinguished from other cases in which a matrimonial home was jointly acquired; providing for the whole of the net proceeds of sale to Robyn would defeat the testamentary freedom of the deceased to provide for his only two children with each of whom he also had a close and loving relationship; it would also defeat the legitimate expectations of Todd and Michelle, each of whom has financial needs which should not be disregarded; and the value of the estate, after deduction of the expenses and costs, is not large. Bearing in mind her knowledge of the deceased's testamentary intentions, it would not necessarily defeat Robyn's legitimate expectations.
The fact that the relationship of Robyn and Todd and Michelle has been fractured does not persuade me that it is right to make provision in the form of a lump sum that equates to the whole of the proceeds of the North Haven property.
During the course of submissions, I raised the possibility of making provision in accordance with a life estate, necessarily subject to orders derived from Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979 unrep), extracted in part, in Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at 13580, [9433].) More recent examples can be found in Johnson v Wright [2012] NSWSC 879 (Macready AsJ) and my decision in O'Leary v O'Leary & Eccles [2010] NSWSC 1347.
In Re Schlink; Keane v Corns [2020] VSC 180 at [79], McMillan J described a Crisp order as:
"… a practical way of crafting relief which provides for the proper maintenance and support of an applicant in a flexible manner, while also preserving the estate for the remaining beneficiaries. The usual circumstance in which a Crisp order may be appropriate in family provision claims is where an applicant for further provision is a surviving spouse or partner of a deceased and the deceased failed to provide adequately for them."
Such an order gives the party obtaining the benefit of the order, an interest for life in real property, or in an interest in real property, with the right to sell it (should the need arise) for the purposes of securing, for that person's benefit, more appropriate accommodation. That type of order is intended to provide flexibility, by way of a life estate, the terms of which could be changed to cover the situation of the person moving from her, or his, own home to retirement village to nursing home to hospital. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest": Ipp JA in Milillo v Konnecke at [47]-[48].
Counsel for both parties disavowed the suggestion of making a Crisp order in this case: Tcpt, 30 November 2022, p 59(46)-60(1); 63(21-26). I can understand the reasons why, including that it will require Robyn to effectively be a tenant of any property purchased, with the parties, together, having responsibility for the upkeep of any such property, including the payment of rates and insurance over that period. Secondly, no funds would be available to pay the rates and insurance or maintenance. Thirdly, it would keep the parties connected financially and otherwise, which, in my view, would in such circumstances, not be in the best interests of any of them.
Had Robyn been able to raise the amount necessary to discharge the loan secured on the North Haven property, and any costs orders, then the parties could have agreed that the North Haven property did not have to be sold. However, that course has proved unworkable.
Since the North Haven property is to be sold, I have considered whether Robyn should receive by way of provision a proportion greater than one-third of the net proceeds of sale, or a fixed amount. Ultimately, I have concluded that giving her a larger share, or a fixed sum, which does not equal almost all of the net proceeds of sale, would be neither adequate, nor proper, because of the size of the available estate, because it may not provide sufficient funds to enable her to obtain secure alternative accommodation.
In my view, Robyn should receive, in lieu of the provision made in Clauses 5 to 7 of the deceased's Will, by way of provision, one third of the net proceeds of sale absolutely (as she did under the Will of the deceased). In addition, the balance of the net proceeds of sale of the North Haven property should be made available to her, to assist in providing accommodation.
The more difficult question is the manner in which the balance of the net proceeds of sale should be provided. Two alternatives were debated during the submissions. One alternative, initially suggested by the Bench, and hesitatingly, adopted by counsel for Robyn, was that the amount should be loaned to her, secured by way of first registered mortgage, on any property purchased by her: Tcpt, 30 November 2022, p 46(13-28), 62(29)-63(41). In this way, she would have her preferred, but limited as to its cost by virtue of the North Haven property, accommodation, registered in her own name, whilst Todd and Michelle would receive the share in the deceased's estate, which they would have received under his Will, but at a time that was determined as if the North Haven property were sold when Robyn no longer wished to live there.
The other alternative debated was the purchase of accommodation, by Robyn, Todd and Michelle, as tenants in common, with Robyn being granted an interest for her life, in their share of the property purchased. Whilst I have carefully considered this alternative, I have decided that to do so will unnecessarily keep the parties connected in circumstances where other litigation might follow.
Having considered all of the factors, including the relationship of the parties, I am of the view that adequate and proper provision requires that after she receives the lump sum of $40,000 referred to above, and one-third of the net balance of the net proceeds of sale, she should receive a lump sum, which equates to two thirds of the then net proceeds of sale of the North Haven property (which I shall call "the accommodation fund"), by way of a secured loan, to enable her to purchase alternative accommodation in her own name. In this way, she will have the benefit of the fee simple in any property purchased, rather than effectively, a right of occupation of a home, part of the title to which is left in the hands of the executors. She will be entitled to the capital gain (although of course that will be reduced by interest to be paid out of proceeds of sale if and when the property is sold).
Any loan should be secured by mortgage registered on the title to the property purchased. The term of the loan should be for Robyn's life, or until she sells the property that is acquired by her. In this way, she will have the benefit of any capital gain subject to the payment of interest to which I shall next refer.
Interest should be paid by Robyn on the loan, at the annual rate that the evidence reveals she would have paid if she had been successful in borrowing funds from a third party (3 per cent per annum). The interest should be capitalised each year, so that her income is not depleted, but interest on interest, should not be paid.
In this way, Robyn will be the mistress of her own life, for the remainder of her life, and will not be beholden to Todd or Michelle.
To the extent that the price of the property purchased by Robyn is less than the accommodation fund, the surplus should be immediately distributed to Todd and Michelle in equal shares.
Bearing in mind the principal claim for provision was based upon Robyn purchasing accommodation, it is also necessary to consider what would be adequate and proper provision if she does not purchase accommodation within a reasonable period of time. If she does not do so within 6 months of the date of the completion of the sale of the North Haven property, or such other time as the parties agree, the net proceeds of sale should be distributed by Todd and Michelle, as executors, as to $210,000, to Robyn, and as to the balance in equal shares to Todd and Michelle. The sum Robyn would then receive would be about $250,000 in total, and each of Todd and Michelle should receive about $80,000.
Assuming I have correctly understood the submissions orally made, the costs of each party, as agreed during the course of the hearing, should be paid before calculating the amount of the available proceeds for sale.
The parties are directed to confer and to submit to the Court in hard and soft copy, by 25 January 2023, an agreed form of orders, or if agreement cannot be reached, alternative forms of orders, reflecting these reasons.