Clemson v Barber; Starkey v Barber [2011] NSWSC 995 | Case summary

The situation in life of Kaye Starkey 24She is 55, widowed, with no dependents. She is now an inpatient at an aged care facility and is no longer able to walk. Her pension meets her accommodation costs but does not provide for matters such as her motorised chair and incontinence pads. Her medical conditions and her needs on a recent admission to the aged care facility were described as follows: "Identified care needs: Kaye is a 54 year old female who came to Genista ACF on 18/11/2010 from District Hospital, Blue Mountains, was previously an inpatient at Nepean Hospital, Penrith. Kaye was not able to walk any longer and was bed bound since February 2010. Prior to hospital admission, she was living alone needing assistance with ADLs but not keen on nursing home placement. Guardianship application sent for nursing home placement. Her medical problems as per hospital discharge summary include: Alcoholic liver disease, peripheral neuropathy secondary to alcohol abuse, chronic back pain, COPD (smoker), IHD (previous history of MI), intermittent AF, depression, malnutrition, urosepsis, anaemia and thrombocytopaenia, hyponatraemia, multiple rib fracture, cognitive impairment. Also include self harm and mutilation and repeated hospital discharges against medical advice. She is under Dr Drever and is allergic to Morphine, Penicillin, and Keflex.

Showering, dressing and grooming: Due to poor mobility and dexterity, Katie is physically unable to initiate or undertake any tasks relating to hygiene. Has a high risk of fall in shower. Due to leg spasm into extension with pain on touch, attempted movement or repositioning, Katie needs to have a bed bath 2nd daily. She will be trialing shower chair for shower with physiotherapist. She is unable to sit for prolonged period of time in upright chair unsupported. She owns her teeth and uses an electric toothbrush.
Mobility: Katie has been bed/chair fast since February 2010. She has neuropathic pain in feet, tingling and numbness in the hands. Condition ascending to upper limb. Legs are very sensitive to touch and can only tolerate small, slow and general leg movement. She often experiences leg spasms when attended - her legs straighten without warning.
Nutrition and hydration needs: Previous hospital admission due to malnutrition, poor oral intake and very low body weight. Has poor insight into need for more intake. Had NG feeds whilst in hospital for almost two months. Weight on admission - 40.8kgs and up to 41.3kgs the following month. She likes poached egg, jelly, cheese sandwich or cheese and crackers. Dislikes chicken, spaghetti and baked beans. She is on full normal, high protein, high energy diet.
Toileting/continence needs: Is usually incontinent of both urine and faeces. She is unable to sit on a toilet or bed pan due to leg spasms. Katie wears incontinence pads 24/7. She is unable to attend to any toileting activities. She is on a regular aperients for constipation.
Communication: She has short term memory problems. Has mild cognitive impairment being one of her medical diagnoses. She lacks capacity to make adequate and informed decisions about her care needs. Was seen by an optometrist in house 15/12/2010. Has impaired vision due to bilateral nuclear cataracts and is short sighted. Wears glasses for general vision (TV, etc) and remove for close watch. Wrist band call bell supplied for easier access due to very limited mobility.
Medications: Katie takes oral medications up to 4x per day. She is administered S8 medication for pain. She is allergic to Morphine, Penicillin, and Keflex. Keflex was added to her list of drug allergies when it was ordered for UTI. Few minutes after taking the initial dose she developed shortness of breath, nausea, chest pain and rashes all over.
Complex health care: Katie is bed/chair bound and incontinent making her at risk of skin impairments. She has dry itchy skin all over. She also has pain management program in place for intermittent left rib pain, leg spasm into extension with pain on touch, attempted movement or repositioning." 25She worked as a bookkeeper during her early life. Strangely, she gave no evidence of any association with the deceased since she left home as a young woman. The deceased, however, at least indicated in his will that she was to receive some benefit. In contrast to the plaintiffs, there is nothing showing any help to the deceased in his declining last 10 years. That seems to have been all done by the plaintiff. She also did not contribute to the estate of the deceased.

Consideration 27The plaintiff widow asked for the whole estate. The plaintiff Kaye Starkey asks for a legacy of $27,500 to buy her a motorised chair (which will cost $4,500) and provide her with incontinence pads. The defendants suggest that the plaintiff widow should have a Crisp order. Given the lack of funds in the estate, this will do nothing to help the plaintiff, Kaye Starkey. 28Turning, firstly, to matters which affect the plaintiff widow's application, the question of what is an appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a long-standing de facto partner has been dealt with in a number of cases. 29In the 1970s and 1980s there were a number of decisions of single judges of this Court where they have held that a life interest with particular attributes was appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd (NSWSC, Holland J, 18 December 1979, unreported); Banks v Hourigan (NSWSC, Waddell CJ in Eq, 2 March 1989, unreported); Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported). This perhaps is reflected in matters mentioned by the High Court in White v Barron (1980) 144 CLR 431 where at p 444 Mason J said: " A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy" He appears to be the only member of the Court to have adverted to this aspect. 30A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1 that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was one of the majority in White v Barron ( 1980) 144 CLR 431 ) at pp 438-440, went to some lengths to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application. 31In Elliott v Elliott (NSWCA, 24 April 1986, unreported), Glass JA said in reference to the above quoted statement: "The statement there was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased. The residuary beneficiaries here have none and it seems to me that no fairness is owed to them." McHugh JA agreed with his judgment and the President agreed substantially with the reasons given by Glass JA. He added nothing on this aspect. I do not think that it can be said that the Court of Appeal has adopted the statement of Mason J in White v Barron. All that can be said is that they distinguished the situation before them. 32By the late 1980s the Judges in this Division were taking a slightly different view. For instance, in Court v Hunt (NSWSC, 14 September 1987, unreported) Young J said: " Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one Judges the evidence in these sorts of proceedings against that background knowledge. His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass fifty five, had to change their accommodation and locate themselves either in retirement villages or nursing homes, which have different requirements for capital contribution. 33After talking about the evidence necessary, his Honour went on to say: "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a Court to alter a life estate to a more flexible noncapital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd , 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have had to be made by the widow." More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky v Golosky (NSWCA, 5 October 1993, unreported), Kirby P summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms: " 2. In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included: (a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor , above, 458; Hunter , above, 576; (b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testators household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81. (c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70; (d) A mere right of residence will usually be an unsatisfactory method of providing for a spouses, accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2; (e) Considering what is "proper" and by inference what is "improper" as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252 ." 34In talking of the need to provide a house and a sum for contingencies Kirby P is clearly referring to passages in Luciano v Rosenblum (1985) 2 NSWLR 65. In the judgment of Powell J at first instance in Elliott v Elliott ( 18 May 1984, unreported) his Honour said that such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. This seems to have been generally adopted over the years in many subsequent cases. 35In Permanent Trustee v Fraser (1995) 36 NSWLR 24 at 47 Sheller JA had the following to say: "Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. That need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security." 36In Salmon v Blackford [1997] NSWCA 274, the Court of Appeal was dealing with the case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said: "The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half of the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case. The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over 11 years at the time of the hearing. If one comes to the conclusion that for her proper maintenance and order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty." 37No reference was made in either of these cases to the comments of Mason J in White v Barron . In Permanent Trustee v Fraser there were no competing claims by children of the first marriage. In Salmon v Blackford there were children of the first marriage but they appeared well off and their claims were thus minor. 38Recently in Hertzberg v Hertzberg [2003] NSWCA 311 McColl JA referred with approval to Golosky v Golosky and said [34]-[35]: "34 ....section 9 (2) of the Family Provision Act directs the Court to consider the issues of jurisdiction and the exercise of discretion at the time of the proceedings, not the time of the will, and in this case the deed, were made. In reaching his decision the Acting Master took into account community expectations. He referred to Young J's observations in Blackford v Salmon, unreported, 27 July 1994, in which his Honour said: 'It seems to that for a widow of a 30 year marriage who has lived in the house for some time and who continues to wish to live there, the expectation in the community would be that a wise and just testator would have left her the house in fee simple.' 35. His Honour's judgment recognized the community expectation that a testator should make provision for a widow to ensure that she can lead an independent and dignified life. That prospect is diminished when the widow does not have the benefit of the fee simple, but rather, a right of occupation of her home with a provision for expenses associated with that right being left in the hands of the executors." 39This also was a case where there was no competing claim. It seems to me that the comments of Mason J in White v Barron should still be given consideration when one is considering a situation of competing claims. 40It is however worth noting the comments of Young CJ in Eq in Marshall v Carruthers [ 2002] NSWCA 47. His Honour agreed with the comments of Hodgson JA and added: " [72] Mr Ellison for the respondent strongly submitted that a person who makes a claim as a spouse of a class (a) eligible person is entitled to take comfort from the words of Mr Justice Powell in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 that a spouse is more or less entitled to have a home plus income to enable her to live in the style to which she is accustomed provided out of the estate. Indeed this passage is actually a summary of a similar but longer statement made by Powell J in Elliott v Elliott 18 May 1984 unreported which was approved by the Court of Appeal on 24 April 1996 and which is set out in the learned Master's judgment. [73] It must be remembered that Powell J put his proposition as a "broad general rule". However, there is in fact no "standard former spouse" to which one can just apply that proposition as a rule of thumb. [74] Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue." 41Similarly in Bladwell v Davis [2004] NSWCA 170, Bryson JA reviewed the authorities and concluded that the adoption of any such preconceived position or formula was likely to result in error, stating at par [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 par [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." 42For the plaintiff to receive the home absolutely, the first defendant's costs will have to be paid. She has some funds of her own. There is uncontested evidence that a friend will provide the rest of the necessary funds. In these circumstances, it is possible to provide for the widow as she requests if no provision is made for the daughter. Any provision for the daughter will require the sale of the home. In this regard, I note that: 1.the plaintiff is 74 years old and has a 15 year life expectancy; 2.she feels so comfortable remaining in the home she hasn't even thought to enquire as to the cost of nursing home accommodation; 3.she is fit and well for her age; 4.she has had an unfortunate estrangement over a headstone with Elizabeth; 5.she had a 33 year close relationship with the deceased; and 6.she cared for the deceased in his illness over the last 10 years. 43These circumstances have to be contrasted with the plaintiff in Kaye's situation, which is of course quite dire. The evidence did not address who was providing incontinence pads at the present time and whether that will continue. 44In the circumstances of the widow's life expectancy and the comfortable enjoyment of her home which she now has, I think it means she would wish to have control over her own destiny and that this wish is a reasonable one. Unfortunately, as the claim should prevail over that of the daughter Kaye, this is a very unfortunate matter where there is not simply enough in the estate to provide for all the parties. 45The orders that I make are as follows: 1 That in lieu of the provisions of the will of the deceased for a life estate in favour of the plaintiff Pamela Clemson, she receives the deceased's real estate absolutely; 2 I dismiss proceedings 2010/273928; 3 In proceedings 2010/42751, I order the plaintiff to pay the defendant's costs on an indemnity basis, and charge the deceased's property with the payment of those costs. I will hear the parties on costs in proceedings 2010/273928. COUNSEL ADDRESSED AS TO COSTS EXHIBIT #2 LIST OF OFFERS AND CORRESPONDENCE TENDERED, ADMITTED. 46HIS HONOUR: I will deal with an application for a different order in respect of the order that I have already pronounced in respect of the costs of the widow's proceedings. That series of offers starts in March 2010 in which the plaintiff, Pamela, offered to settle proceedings with the defendant generally along the terms that she receive the whole of the estate, but that she make a binding will to leave the residue of her estate when she died equally between the two daughters and two stepdaughters of the deceased. At that stage, it could not be settled because, plainly, the time had not expired for Kaye Starkey's claim. In fact, she had not made a claim. There are a number of other offers during 2010 which repeat the offers. By March 2011 offers are being made by the plaintiff, Pamela Clemson, to both the executor and also to the solicitors for Kaye. For instance, there was an offer to Kaye of $5,000 plus costs of $4,000, and an offer to give her the coin collection and the plaintiff would have the balance of the estate. 47There was then an offer of compromise made by Kaye Starkey in March to settle for a legacy of $22,750 and costs of $16,250. Nothing seems to have happened about that. 48There was then an offer by the estate solicitors. That was apparently another offer to the plaintiff Kaye of $45,000 and that was made on 6 July. 49So far as the widow's claim, the executor was only prepared to offer a Crisp order. The house obviously may have to have been sold. It was anticipated that there might be enough funds to pay Kaye's offer. That wasn't accepted. Thereafter, there were offers to settle on the basis of a Crisp order. 50The problem is that in respect of these offers, there was never a point reached where both parties were willing to compromise. Obviously, the matter could not be settled without that, both claims being settled. 51There is another aspect to it and that is that, plainly, as the evidence of the defendant shows, she had her own interests at stake. 52I am not satisfied that the offers that I have seen are sufficient to justify some other order. Accordingly, I decline to vary the order which I have made. The exhibits can be returned.

Clemson v Barber; Starkey v Barber

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Cases Cited (13)