Crossman & Anor v Riedel & Ors [2004] ACTSC 127

2. This application is brought by Geoffrey and Beth against the first defendants (sometimes referred to as the executors), their sister and nephew, Dawn and George, and Dawn as the beneficiary has been named as second defendant. The plaintiffs, who were aged 73 and 70 respectively at the time the will was made, apply for adequate provision to be made from the estate for their proper maintenance, education and advancement in life. Jon, who, pursuant to s 7 of the Family Provision Act, is an eligible person to make application for provision and who had originally joined in the application, withdrew before these proceedings were heard.

3. The testator was born on 1 November 1901 and married Frank Crossman on 16 April 1919. On 28 February 1921 the first child was born, Lindsay (Dick) Crossman at Kempsey in NSW. Dick died on 25 December 1981. On 27 July 1923 Dawn was born at Quambone in NSW. On 28 June 1926 Ross (Bill) Crossman was born at Quambone, he died on 7 August 1997. On 11 March 1927 Geoffrey was born at Carlingford, Sydney. On 13 June 1930 Beth was born at Quambone. On 13 April 1941, Jon was born at Bemboka in NSW. On 24 March 1943 Peter Crossman was born at Canberra in the ACT and died on 9 August 1989. Peter was born with Down's Syndrome. An eighth child, Paul, died at birth. The husband and father, Frank Crossman, died in 1970.

4. The Crossman family moved to Canberra in the Australian Capital Territory in 1941 to Griffith, a relatively new suburb at the time. The family occupied a premises situated at 24 Bannister Gardens. It is those premises that make up the bulk of the estate. The premises have now been sold. The assets of the estate as at 30 June 2003, were $807,263.35 and comprise monies held in trust and on deposit.

The Family Provision Act 1969 (ACT)

5. The Family Provision Act 1969 (ACT) enables this court to order that provision be made out of the estate of a deceased notwithstanding the dispositions made by will. Only eligible persons may apply and in this case, the two applicants, as children of the deceased, are entitled to make the application (see s 7(1)(c)).

6. The provisions which govern the making of an order under the Act are set out in ss 8(2) and (3) of the Act,

(2) The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available--

(a) under the will of the deceased; or

(b) if the deceased died intestate--under the law applicable to that intestacy; or

(c) under that will and that law combined.

(3) The criteria for the Supreme Court's decision under subsection (2) in relation to the deceased and the applicant are as follows:

(a) the character and conduct of the applicant;

(b) the nature and duration of the relationship between the applicant and the deceased;

(c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

(d) any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

(e) the income, property and financial resources of the applicant and the deceased;

(f) the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

(g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

(h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

(i) the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;

(j) any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;

(k) any other matter the court considers relevant.

7. Each of the States and Territories of Australia have legislation in similar form. The legislation is taken from that enacted in New Zealand in the early part of the last century. In the Explanatory Memorandum which accompanied the introduction of the present Act, it was said that the proposed legislation contained up-to-date provisions, whilst retaining the basic principles of the present legislation. I am unable to determine any material difference between the ACT legislation and its counterparts. The principles related to the application of the legislation have been the subject of relatively recent judicial exposition by a majority of the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. The parties before me sought that I approach this case in light of that decision.

8. In Singer v Berghouse (supra), Mason CJ, Deane and McHugh JJ described the approach to be taken by a court as follows (at 208-209),

It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question" (See, eg White v Barron [1980] HCA 14; (1980) 144 CLR 431 at 456; Bondelmonte v Blanckensee (1989) WAR 305 at 307; Golosky v Golosky_, unreported, New South Wales Court of Appeal, 5 October 1993.). That description means no more than that the court's power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a)._ [The provisions corresponding to ss 8(1), (2) and (3) of the Family Provision Act 1969 (ACT)]

...

In Australia, it has been accepted that the correct approach to be taken by a court invested with jurisdiction under legislation of which the Act is an example was that stated by Salmond J in In re Allen (Deceased), Allen v Manchester (1921) 41 NZLR 218. In that case his Honour said (ibid at 220-221; appvd in Bosch v Perpetual Trustee Co [1938] AC 463 at 479; appld in Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 at 11; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 497:

The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.

For our part, we doubt that this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language (Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR at 158; Goodman v Windeyer (1980) 144 CLR at 504-505).

The first question is, was the provision (if any) made for the applicant "inadequate for (his or her) proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co ([1938] AC at 476). The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

9. In the present case, there is little point in pursuing the notions of "moral duty" or "moral obligation" as the case before me is placed squarely, by both parties, on the question of whether adequate provision for the proper maintenance, education or advancement in life of each of the applicants is available under the will. There has been considerable judicial debate on the aspect of moral duty referred to in Singer and its effect on the words of the statute (see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, Collicoat v McMillan [1999] 3 VR 803 and referred to in Vigolo Bostin & Ors [2002] WASCA 327 which is under appeal to the High Court); I was not asked by the parties to enter that debate or to do other than apply the words of the statute. I was also asked not to entertain any prima facie notion that because no provision had been made for the applicants, I might more readily find that no adequate provision had been made (cf Singer at 225 per Gaudron J). I accede to those submissions.

10. I do, however, consider that what Ormiston J said in Collicoat v McMillan (supra) at 816, is particularly apt to a case like the present,

In all testator's family maintenance or family provision legislation of the kind under discussion there have always been two principal questions to be resolved at the first stage of the inquiry whether the testator has made adequate provision for the proper maintenance and support of a person entitled to apply for further provision. One must ascertain both whether "adequate" provision has been made and what in the circumstances would have amounted to "proper" maintenance and support, using the latter words as comprehending the varying statutory formulations relevant to each jurisdiction which has similar legislation. They are two sides of the same coin, so that it is but a single enquiry having regard to both aspects of the test: cf. Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19 per Dixon CJ. Indeed, in order to succeed, an applicant must show what would have amounted to "proper maintenance and support" to the applicant and at the same time show that the distribution made by the testator's will (or resulting from intestacy) was not "adequate" or sufficient to provide for such proper maintenance and support having regard to that applicant's needs: cf Bosch's case at 476 approved in Singer's _case at 209-10. Since this kind of legislation was introduced the courts have considered on many occasions what is meant by "proper" and what it is intended to connote in the context of a jurisdiction intended to remedy inappropriate distributions of property by will or upon intestacy. Fortunately there has been remarkable consistency over the years, largely because the test of propriety has always been treated as flexible and adaptable to current but accepted standards of testamentary obligation: see, eg, [_Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 at 502].

11. Amongst the material before me there were affidavits and numerous answering affidavits from both the plaintiffs, Geoffrey and Beth, and the defendants, Dawn and George dealing with the relationship of the parties to the testator. As well, there were affidavits from Nancy Harris, Geoffrey's partner, Jon Crossman and Gunda Crossman, Jon's wife, and Lynne Crossman, Geoffrey's daughter on this aspect. Geoffrey was extensively cross-examined on his affidavits as was Dawn on hers. Although Beth was called for cross-examination, her cross-examination was limited to the fact that although she had made inquiries in relation to retirement villages she had not, at this stage, inspected any. No other deponents were called for cross-examination. There are clearly issues between Geoffrey and Beth as to their attitudes to Dawn and Dawn's attitude to them as well as their mother's relationship with each of them. Apart from noting the existence of those issues, there seems little point in attempting to detail or resolve most of them as they tangentially bear upon the application. The important issues relate to the relationship between each of the plaintiffs and the testator rather than those issues between them and their sister Dawn. I am satisfied, however, that whereas Geoffrey was attempting to give an honest and reasonably objective account of events, Dawn was giving her evidence from a perspective of self-interest, captiousness and particular antagonism towards her siblings that I found quite unimpressive. It follows that I place little weight on the views that Dawn holds or implies that she holds concerning the character and conduct of the plaintiffs. As well, the supporting affidavits, which were not the subject of cross-examination, supported Geoffrey and Beth's evidence in respect of their relationship with their mother. I am accordingly prepared to accept Geoffrey's account where it differs from Dawn's, but as I have indicated, I am only concerned with those issues that are relevant to the application.

12. The plaintiffs sought to show by their cross-examination of Dawn and the tendering of material, in particular a covert video of some of her day to day activities, that Dawn was better off both medically and economically than her affidavits made out. Even so, that fact does not affect what I ultimately regard as a clear entitlement for provision to be made for her. This material was also of little value in assessing the more relevant question, that of the relationship between the testator and Dawn. Nor do I consider it to materially affect the significant fact of that relationship, namely that Dawn, the oldest surviving female child, was much more in the testator's favour in her later years of life than the plaintiffs.

13. The plaintiff, Geoffrey, despite a lengthy public service career until his retirement in 1987, has little means to support himself in his old age. He was 76 years of age at the date of the hearing. He completed his first two years of high school education at Bemboka in 1941 and sat his Public Service Entrance examination in late 1942. Thereafter he commenced employment with the Statistics Branch in the Department of Treasury as a messenger. A number of promotions followed. He retired from the public service in 1987 having been a supervisor in the Computer Division of Treasury for the preceding 10 years. Geoffrey moved out of the family home at Bannister Gardens in 1957, when he married Norma Mary Sommerfield. Norma had one daughter, Karen Anne, then aged two years and whom Geoffrey later adopted. Although for a time in the early 1960s he ran a small milk distribution business to save a deposit to buy a house, at no stage did he manage to do so and he has rented houses all his life. He worked on the 1966 Census in Sydney and returned to Canberra in August 1967. After his return to Canberra his wife left him with three children to raise aged 12, 8 and 5. In about October 1969 he was informed his estranged wife had committed suicide.

14. In 1982 Geoffrey asked the testator for a $10,000.00 loan to be utilised as deposit to obtain a home loan from the Department of Housing in order to purchase the premises he was renting from them. He eventually did not proceed with the purchase. It is Geoffrey's evidence that he attempted to return the loan, however the testator refused to accept it. The money was used to buy a new car. In 1983 Geoffrey commenced a relationship with Nancy Harris. From the time that the testator's husband died in 1970, Geoffrey would often be called upon to assist the testator "take care of the gardening and any other jobs such as repairs, maintenance and shopping". After his retirement from the public service in 1987, Geoffrey visited the testator and his two brothers, Peter and Bill, at Bannister Gardens each Wednesday. During the early 1990s he accompanied the testator on two occasions to Brisbane to visit his sister Dawn and on at least two other occasions for family engagements in Queensland. In about 1996 Dawn and Geoffrey were given a Power of Attorney by the testator. During 1997, Geoffrey and the testator had a general discussion about Geoffrey's inability to purchase a house during his working life. The testator suggested that Geoffrey withdraw $10,000.00 from her bank account as a deposit for a home loan. Geoffrey refused the offer as he did not want to assume responsibility for a mortgage in his retirement and also because he did not believe the testator was lucid in her offer.

15. The plaintiffs' brother Bill lived with the testator. In the late 80's he developed Parkinson's disease and his physical condition deteriorated markedly. In August 1997 Bill had a heart attack and died. Bill's death appears to have adversely affected the testator. She did not return to reside at her home in Bannister Gardens. After Bill's funeral, the testator accompanied Dawn back to her home in Queensland. Then the testator returned to Canberra to live with Geoffrey and Nancy in about November 1997. The testator remained with Geoffrey and Nancy until February 1998 while Geoffrey continued to attend and maintain the Bannister Gardens residence. During that time, Geoffrey would take the testator on outings and arrange her medical appointments for her. The testator's household expenses and bills from Bannister Gardens were paid by Geoffrey from the testator's account.

16. It is an event which occurred at about that time that led to the removal of Geoffrey as the Power of Attorney and an eventual remaking of the testator's will. In January 1998, Geoffrey and Nancy arranged a holiday to Tasmania and Dawn and George arrived in the ACT to take care of the testator for that period. Whilst the testator had been staying with Geoffrey and Nancy, Geoffrey had been looking after the testator's financial affairs, paying bills and withdrawing cash from her pass-book account. Just prior to Geoffrey and Nancy leaving on their holiday, a bitter altercation took place over Geoffrey's operation of the account involving Geoffrey, the testator, Dawn and George. It had the effect of poisoning the relationship of the testator and Dawn with Geoffrey. Not long after, Dawn took control of the testator's banking. Upon Geoffrey's return from Tasmania, the testator had eye surgery at the John James Memorial Hospital in Canberra. At some stage in early February 1998, it is Nancy's evidence that the testator asked if she could resume living with Geoffrey and herself. Notwithstanding, in mid to late February 1998 the testator returned to reside in Queensland with Dawn and George.

17. There was another incident in late February 1998 where a letter was sent to Geoffrey from solicitors at the instigation of the testator and Dawn concerning a car and a sum of money related to Bill Crossman's estate. Apart from demonstrating the continuance of the distrust that had arisen between Geoffrey and his mother and sister Dawn, the issue seems of little moment. I do not regard it as tending to show that Geoffrey was exploiting his position as executor of Bill's estate, nor does it demonstrate financial assistance being given to him by the testator.

18. There appears also to be separate issues between Geoffrey and Dawn over the estate left by Dick Crossman who died in 1981. According to Dawn's affidavit, he left a "large" estate which was given to Jon Crossman to look after. She claims the benefits of a holiday house on the south coast and a unit in Queanbeyan were "shared largely between Jon and Geoffrey". That does not appear to be so, having regard to what is said by Jon in his unchallenged affidavit. It appears also that Dawn, for some reason not explained to me, is now seeking letters of administration in respect of the estate. Again, the issue would not appear to particularly bear upon this application, but it does illustrate the depth of feeling and mistrust between Dawn and her siblings.

19. In 1998 Geoffrey and his brother Jon consulted Dr Harlow in Canberra about their concern that their mother may have been suffering from dementia. At the time their mother was with Dawn in Queensland.

20. In late 1999, the testator returned to Canberra with Dawn and, after a short time in the Salvation Army respite, the testator was placed in the Jindalee Nursing Home at Narrabundah on 21 January 1999. In May 1999, on an application made by Geoffrey and Jon, the Guardianship and Tenancy Tribunal of the ACT found that the testator was suffering from physical, mental, psychological or intellectual conditions and by reason of those conditions she was unable to make reasonable judgments in respect of herself, her circumstances and her estate. It was the wish of the testator that Dawn be appointed to be her guardian and manager and that appointment was made by the Tribunal. At that time, s 3(2) of the Guardianship and Management of Property Act 1991 (ACT) provided that the views and wishes of a person in respect of whom an order was to be made were to receive paramount consideration. Dawn used the making of this order to exercise total control over her mother's affairs and although Geoffrey had been regularly visiting the Bannister Gardens premises to maintain them, in mid 1999 the premises were locked and the key only available from the nursing home on Dawn authorising its use. Dawn contracted out the lawn mowing and maintenance work rather than permit Geoffrey to do it.

21. Over the time the testator was in the nursing home, the testator's Canberra children and grandchildren visited her, however, on occasions she had trouble recognising who they were. Despite Dawn's view to the contrary, I consider that there is no reason why I should doubt the affidavit evidence of Geoffrey and Jon that they regularly visited their mother and the affidavit evidence of Beth that she regularly telephoned her over this time. Nor do I doubt Geoffrey's evidence that he was prepared to continue the lawn mowing and garden maintenance of the testator's premises had he been permitted to do so by Dawn.

22. A new will was prepared in May 2000 and signed by the testator on 1 June 2000. That is the will in respect of which probate has been granted. A document declaring the reasons for the provision in the will was also signed by the testator. A previous will made by the testator on 4 December 1997 had provided for a quarter share to go to Geoffrey and a quarter share to Dawn with a devise of each share over to their children should Geoffrey or Dawn predecease the testator. The two sons of Jon were to receive a quarter share as were the five children of Beth; in the latter case with a devise over of each child's share to their surviving children should a parent predecease the testator. The share of Jon's sons was also charged with a gift of $10,000.00 to each of the three other shares.

23. A 100th birthday celebration was arranged for the testator on 1 November 2001, Dawn and George attended from Queensland, however Geoffrey was not invited, nor did he attend the celebration. It is unclear whether or not Beth did so. The testator died on 9 November 2001.

24. Beth was 73 years of age at the date of hearing of this matter. She completed high school at Telopea Park School in 1946. She commenced working as a clerk at the Department of Post War Reconstruction. She later applied for a nursing traineeship but was unable to start because she contracted Tuberculosis. Her health during her lifetime has been problematic. Her breathing difficulties were evident at the hearing throughout the course of her giving evidence. After the application for the nursing traineeship, Beth obtained employment as a telephonist at the Postmaster General's Department from 1948 until 1949 and then at Trans Australian Airlines until 1951 whilst living at the Crossman family home and paying board.

25. Beth married David William Cowan on 15 December 1951. She bore five children to him, however, it was apparently an unhappy relationship which ended as a result of a violent episode at Christmas 1963 when Beth sustained a broken arm. The marriage ended in divorce in 1964. Beth was left to raise the five children on her own, with very little financial assistance from her ex-husband who rarely complied with the maintenance order against him. She has resided in a rented government house in O'Connor since 1954 and has been in receipt of a government pension since 1964.

26. Beth's evidence was that during the period 1970 to mid 1980s, when the testator travelled she would look after her disabled brother Peter. In 1976, and again in 1982, Beth accompanied the testator on a cruise to Fiji at the expense of the testator. After her father's death in 1970, and up until 1997, she accompanied Geoffrey on his regular Wednesday visits to Bannister Gardens.

27. During the testator's final months, Beth's visits to the Jindalee Nursing Home were limited because of her ill health, however she would phone the home every second day to speak to either her mother or the nursing staff. After the testator moved in with Geoffrey and Nancy in 1997, Beth maintained phone contact with her mother given that her visits were again restricted by her ill health. During the period her mother was living with Dawn in Queensland, she also maintained regular phone contact. Before Bill's death in 1997, the testator asked Beth to live with her and to care for her and Bill at Bannister Gardens. Beth declined this invitation because of her health and not wanting to give up her own government house at O'Connor. She invited the testator to live with her at O'Connor, however the testator wished only to live at Bannister Gardens.

28. Beth's health is poor. The state of her health may be gauged from a report of her treating doctor, Dr Ilya Englin of 7 May 2003. Mr Spry, counsel for the defendant Dawn, objected to the report being received in evidence on the ground that Dr Englin's qualifications do not appear on the report. However, the description of her as the treating doctor in Beth's affidavit, the fact that the report is headed `Medical Centre Lyneham' and the description of the writer as `Dr', give me the confidence to accept the report as accurately stating Beth's state of health. The report states,

I have been attending to her since 1994. Her record in this practice starts on 20/08/1992.

Mrs Cowan suffers from the following problems:

1. Severe asthma

2. Emphysema

3. IgG4 deficiency, a condition which manifests itself as a weakness of the immune system, resulting in an increased predisposition to respiratory infections. Such infections are usually prolonged and more severe compared with similar episodes in other individuals.

I believe that her emphysema and asthma are a consequence of the latter condition. She has no other risk factors for either.

Her typical history consists of developing an initially light respiratory infection, which appears just like a common cold. It than develops into an episode of bronchitis with a heavy productive cough, followed by attacks of severe asthma, resulting in considerable restriction to her breathing and loud wheezing, audible without a stethoscope.

These episodes occur in cycles, which run into each other. Sometimes it is impossible to prevent this as her infection simply cannot be cleared fast enough. Patients who receive antibiotics for frequent respiratory infections soon become "resistant" to these antibiotics (this resistance is actually carried genetically by bacteria normally resident in the respiratory tract and passed on to incoming offenders).

She usually requires antibiotics for approximately six weeks plus treatment for asthma, including prednisolone, a drug with debilitating side effects, in particular lethargy and muscle wasting. These do not normally matter for the first few days of treatment, but if the drug is used more than approximately twice a year, it begins to have these effects on a cumulative basis.

Mrs Cowan's main problem is the inability to prevent these episodes. Because such infections are common in the community and present as either mild colds or infections requiring a short course of treatment, she is at constant risk of contracting them whenever she goes into public places or uses public transport.

When she is continually ill for a number of months at a time (a frequent occurrence for her during winter), she is unable to accomplish any real physical work. It is a considerable effort for her to walk 20 metres between where she waits for her appointment and my consulting room. During these episodes she is also very dizzy (an effect of fever), which endangers her balance whenever she is upright.

When well she is able to walk approximately 200m without getting short of breath. She is able to perform some physical work such as light cleaning, but her general fitness is very poor because of the sheer percentage of her life spent on illness and inability to perform any physical work at all. She attempts to keep as active as possible, but her efforts cannot take her past walking short distances at a modest pace.

I enclose the list of her medications [the list attached is extensive].

Her prognosis is, unfortunately, more of the same. I cannot see her improve on the current situation, although, if she continues to receive aggressive treatment, she will not deteriorate further. However, she is at great risk of a major infection if a particular virulent respiratory pathogen becomes prevalent in the community.

In the future, however, it must be anticipated that she will suffer slow deterioration of her respiratory function. Little such deterioration had taken place in the past five years, but the nature of these processes is that they begin slowly and snowball in the last few years of life. It is likely that her respiratory function will contribute to her ultimate lifespan.

Mrs Cowan currently needs assistance with all heavy work, such as vacuuming or gardening. She needs intermittent assistance with all work (such as light cleaning, shopping) when ill.

She will continue to be a heavy user of medications and medical services. In the future, she may require transport assistance for the latter.

It is hoped that for the foreseeable future she will remain in her present accommodation with such assistance.

29. The defendant Dawn was 80 years of age at the date of the hearing. She left the family home, which was then at Bemboka, in 1939 to attend MLC Burwood in Sydney. She commenced working at the Commercial Banking Company of Sydney Limited in Bombala in 1941. Dawn married an active serviceman, Garry Riedel, on 18 September 1943 during his final leave from overseas deployment. Dawn continued to work in the bank after her marriage. Her husband was on active duty until 1946 and after being demobilised in that same year, he was appointed to a position in the Post Office. From the period 1947-1974 he had a number of postings with the postal department and the family moved around New South Wales and Victoria. The marriage produced three children, the youngest being Geoffrey George Riedel (George) born on 21 May 1960 and who is party to these proceedings in his capacity as executor of the estate of the testator.

30. Dawn has enjoyed a long history of employment, not withstanding the birth of her three children. While her children were young she worked as an assistant to her husband. After her youngest child George went to school, she worked in the exchange in Geurie, New South Wales training other telephonists and occasionally performing shift work. In 1966, she began relieving non-official Post Masters for their annual four weeks leave. In 1968 she worked at the Mirror in Surry Hills, Sydney in the photo and block room. In about 1969 Dawn undertook studies to become a Postal Clerk.

31. It is Dawn's evidence that she would make regular visits to the Bannister Gardens residence, when requested by her mother. However, it is clear from the plaintiff's evidence that her major contact with her mother occurred in the four years preceding her mother's death. In 1974 Dawn and her husband moved to Queensland. After her husband's death in 1990, she accompanied her mother on two overseas holidays as her carer. The testator paid for those holidays.

32. Dawn really only appears to have become involved with the care of her mother after the death of her brother Bill on 7 August 1997. There is an implied criticism (and unjustified) in her affidavit of neither Geoffrey nor Beth taking up residence at their mother's house and caring for her. There are other criticisms and innuendoes which I take as intended to reflect upon the character and conduct of both Geoffrey and Beth over the period of that time before their mother's death in 2001. These are matters which reflect more upon the impression I have of Dawn as captious, overbearing and antagonistic than as reflecting upon the characters of Geoffrey and Beth. I give these implied criticisms no weight in my overall consideration of this matter.

33. After Bill's death, the testator went to Queensland for some three months and stayed with Dawn and George. In November 1997 she returned to Canberra and lived with Geoffrey and Nancy. There was the incident in January 1998 concerning the testator's challenge to Geoffrey's administration of her passbook account. In February 1998, after the testator had an eye operation in Canberra, she went to live with Dawn in Queensland. In mid-1998 Dawn was diagnosed with macular degeneration of her eyes. Her eyesight degenerated further so that she felt that she could no longer adequately look after the testator. However, I am satisfied that as early as April 1998 Dawn was looking to place her mother in some form of low level care, having regard to her own sight difficulty. She eventually made arrangement for the testator to be placed in care in Canberra and the testator was taken to the Salvation Army Respite in early January 1999 and to the Jindalee Nursing Home on 21 January 1999. Dawn kept contact with her mother by telephone on a nightly basis up until her mother broke her hip in late 2000. On 28 April 1999, Dr Harlow opined that the testator suffered from mild to moderate dementia and this formed the basis for the Guardianship Tribunal's finding in May 1999 that she was unable to make reasonable judgments in respect of her person, circumstances and her estate. From the time that the testator was admitted to the nursing home, Dawn and George apparently, at the testator's expense, came to Canberra every six to eight weeks and stayed for a week or so during 1999. I assume these visits continued in 2000 and 2001. However, she was in no position to contest the contact which the plaintiffs had with their mother and I do not accept Dawn's assertion that they had very little contact. I do, however, think that Dawn's presence and attitude over this time made it difficult for the plaintiffs, and certainly as far as Geoffrey was concerned, he would avoid contacting their mother when Dawn was present.

34. Dawn was extensively cross-examined on the withdrawals from her mother's bank account from the time she was appointed guardian. Generally, and not surprisingly, she was unable to recall the detail. The only effect of the cross-examination was to establish that there would appear to be nothing untoward in Geoffrey's management of that account to justify the accusations that his mother and Dawn levelled at him. Whether his mother's attitude to Geoffrey was instigated or encouraged by Dawn, does not seem to me to be an issue to resolve, because I am satisfied that Geoffrey's conduct with respect to his mother does not adversely reflect upon him. Equally, whatever animosity Dawn bears to Beth as being reflective of her mother's attitude, does not affect my assessment of there being no adverse reflection also upon her.

35. Geoffrey is in receipt of a part pension from Centrelink of $174.85 and a ComSuper Pension of $774.70, totalling $949.55 per fortnight. He has two savings accounts with balances of $4,170.00 and $1,200.00. He also has a term deposit of $20,000.00, a vehicle valued at $10,000.00 and another vehicle he is restoring valued at $3,000.00. His outgoings approximate his income and it does not appear that he has any capacity for saving. He has not acquired any real estate in his lifetime and is living with his de facto, Nancy Harris, at a residence owned by her. He does not expect to receive any benefit from Nancy's home and he has concerns that should her home be sold, he will be left with no where to live and he will be unable to support himself in his old age. Nancy, in her affidavit of 12 May 2003, refers to the fact that she has always been responsible for the mortgage, maintenance and improvements of her property and has provided for it to be divided equally between her five grandchildren on her death. I am satisfied that this is a long-standing arrangement.

36. Beth has been in receipt of a government pension since 1964. She presently receives a pension from Centrelink of $446.10 per fortnight. She has two bank accounts with amounts of $360.00 and $600.00, a term deposit standing at approximately $12,500.00. She does not own any other assets except for her furniture. She lives in a house owned by the Commissioner of Housing that she has rented since 1954. Her son pays her electricity and gas accounts. Otherwise, her outgoings match the income she receives. She says that the house is becoming too large for her to maintain and as far as any additional service she may require for the upkeep of the house, she cannot afford.

37. Dawn owns her house at Taigum, Queensland which is valued at $200,000.00. She has a car valued at $2,500.00; furniture and personal effects of $5,000.00; cash at the bank of $18,000.00 and loans to her daughter Roslyn of $25,000.00, her son George $20,000.00 and daughter Julie $35,000.00. She receives a fortnightly ComSuper pension of $577.00 and a Veterans Affairs Blind Pension of $567.00. Her outgoings are listed a $961.00 per fortnight.

38. Dawn's evidence under cross-examination as to her assets was often difficult to follow and her true financial position was left unclear. Her explanations for the repayment of loans by her children and her distribution of monies to them were quite unsatisfactory, although they apparently made little difference to her present overall financial position. Accordingly, I do not regard the loans as true assets.

39. In her examination in chief, Dawn said that she had purchased a house at Tenterfield, New South Wales for her son George which she had not disclosed in these proceedings. She said that the house could be valued at little more than the $70,000.00 to $80,000.00 that she paid for it. She also said that she had overlooked disclosing a term deposit which now amounted to $100,000.00 and upon which she was receiving interest.

40. Dawn was extensively cross-examined in respect of her affidavit evidence given for the purpose of these proceedings and the assets she had disclosed in respect of Family Court proceedings involving George and his former wife, in particular, the fact that the Statement of Financial Services which she filed in those proceedings disclosed the property at Tenterfield. In these proceedings, she said that she had purchased that property for George so that his children had a house "to start school in". She said that at George's suggestion, the property remained in her name. For the purpose of these proceedings I regard the house as a gift to George.

41. Some suggestion was made of non-disclosure of a particular account referred to in the Family Court proceedings containing over $22,000.00 but I am satisfied that the account is the same one disclosed for the purpose of these proceedings but bearing a different description.

42. In her affidavit of 26 March 2003, Dawn deposed to her developing a need for a carer. In July 2003, she had an operation and since that time, she said that she had become far more restricted. That operation was a stomach or bowel operation. In cross-examination she said that she could not put out washing on the clothesline, negotiate steps, properly play the poker machines or properly weed the garden.

43. A covert video of Dawn's activities on 24 May 2003 was tendered in evidence. That video showed Dawn engaging in far more extensive activities than those of which she said she was capable. In the end, not much turns on this for the reason that I accept that Dawn seems determined to live an independent lifestyle and resort to requiring a carer only if forced to do so.

44. In the overall scheme of things, whilst Dawn can be said to be somewhat financially better off than either Geoffrey or Beth, the deterioration in her health and the prospect of her health deteriorating further are relevant matters for a testator. I accept that there is a reasonable prospect of Dawn requiring a carer at some relatively immediate time in the future.

45. Both the plaintiffs, Geoffrey and Beth, deposed to inquiries that they had made as to retirement villages and nursing homes as well as the cost of units and townhouses. I must say that the figures provided can only give me a very broad and general idea of costs should the contingencies come to pass that they say should have been provided for. Otherwise, this material is of little assistance. For her part, Dawn provides the costing for a carer should that contingency occur. I consider this to be of more immediate consequence.

46. The Act requires that "adequate provision for the proper maintenance, education and advancement in life" of persons in the plaintiffs' position be available under the testator's will. The estate left by the testator is not over large but the plaintiffs have demonstrated in their evidence before me circumstance which indicate a lack of provision having been made as far as security for future contingencies are concerned.

47. As Santow J pointed out in Gardiner v Gardiner, Butterworths, unreported judgments (28 May 1998) BC 9802209, "adequate" and "proper" are independent concepts.

"Adequate" relates to the needs of the applicant. It is determined by reference to events occurring up to the death of the deceased, but also encompassing what the deceased might reasonably have foreseen before death. "Proper" depends upon all the circumstances of the case. These include the applicant's station in life, the wealth of the deceased, the means and proper claims of all applicants, the relative urgency of the various claims on the deceased's bounty, the applicant's conduct in relation to the deceased, the applicant's contribution to building up the deceased's estate, the existence of dependents upon the applicant, the effects of inflation, the applicant's age and sex, and whether the applicant is able-bodied...

48. The overall circumstances play a significant role in such an assessment. In Stott v Cook (1960) 33 ALJR 447 at 450 Kitto J observed in respect of a 47 year old son of the deceased who was in employment and living in modest circumstances,

The applicant was plainly struggling, and struggling in a way which, so far as the evidence suggests, he should not have had to continue to struggle as a son of that family after his father had died worth £25,000. That goes to the core of the matter, for in these cases the whole test is wrapped up in the words "adequate" and "proper" in the legislature's description of the standard of the provision available for the maintenance and advancement in life with which the applicant's actual circumstances are to be compared.

49. The lack of reserves to meet demands, particularly of ill health, which become more likely with the advancing years, was a factor which influenced Templeman J in MacGregor & Anor v MacGregor [2003] WASC 169 (28 August 2003) at [178] and [179]. As was the provision of much needed financial security and a buffer against the ordinary vicissitudes of life of which Wheeler J referred in Marks v Marks [2003] WASCA 297 at [43].

50. In the present case, Geoffrey Crossman's need arises, substantially but not entirely, from the circumstance that the house in which he is living is owned by his de facto partner which I have noted that she has declared that she has made provision in her will to go to her grandchildren on her death.

51. I do not accept the submission put by Mr Spry that this circumstance demonstrates no "need" for provision to be made. The arrangement and intention with respect of the house is not one that I find was made with the intention of providing an artificial need so as to establish a claim under the Family Provision Act. If it were, that circumstance may well have an effect in the assessment of the contingency that Geoffrey puts forward.

52. However, in the circumstances, it seems to me to be a realistic contingency directly applicable to Geoffrey Crossman's circumstances that his de facto partner might predecease him and that would necessitate him having to have sufficient capital to enable him to continue the very modest circumstances that he now lives. I reject Mr Spry's contention that I should assess this in the context of a possible claim that Geoffrey himself might make under the Family Provision Act in respect of his de facto wife's estate. I consider that the wise and just testator should look to the contingencies affecting those in respect of whom provision should be made on the basis of accepted understandings as to how, in fact, their affairs are arranged. Only if it is shown that arrangements have been made for the purpose of placing a person in a position to make such a claim should that circumstance bear upon the question. That cannot be said in this case.

53. In Collins v McGain [2003] NSWCA 190, unreported, 16 July 2003, provision had not been made by a wealthy mother for a 67 year old son in circumstances where the son had chosen to gift over to his wife a very large sum of money leaving him with no assets. The New South Wales Court of Appeal considered that it was an error not to consider the possible contingencies that might arise. Hodgson JA at [6] said,

The Acting Master also concluded that the appellant had failed to show need because his marriage was happy and he would not want for anything, because "Any request by him will be met by his wife". The material before the Acting Master justified that finding, on the balance of probabilities. But that is not conclusive of lack of need: adequate provision for proper maintenance may require provision for contingencies which are no more than mere possibilities, and in my opinion there is a non-negligible possibility that, whether by reason of future marriage difficulties or financial mismanagement or other circumstances, maintenance from the wife's assets may at some time cease or be substantially reduced. In my opinion, the disregard of this possibility was also in error.

... [The Acting Master] found that the history of that relationship was such that he could presume that the appellant would not want for anything in the future. No doubt, that was a finding open to him. But it did not exclude the possibility that in the future things could change and it was against that contingency that the appellant had a need (given his lack of assets) which was unfulfilled.

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 because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred.

55. It was put by Mr Harris SC, as counsel for Geoffrey, that I should factor in compensation for Geoffrey's possible loss of the aged pension if that put him above the asset threshold for the receipt of that pension. I accept that I should not have regard to the fact that the plaintiff has a right to such a pension as a substitute for the provision that should have been available (In Re Pope (1975) 11 SASR 571 at 574 per Bray CJ). However, I do not see that I should factor in the possible loss of the pension because the asset limit would be exceeded. Rather, my task is to determine if adequate provision has been made, and only in the event that it has not, to determine what it should be. As Malcolm CJ observed in Bondelmonte v Blanckensee [1989] WAR 305 at 312,

The fact that the appellant was in receipt of a widow's pension was relevant to a determination of her financial needs and circumstances. As the learned judge said "... the amount of the pension is barely enough for her personal survival". That being so, the pension ceased to be of relevance. It was not a proper exercise of discretion to structure the provision for the appellant so as to preserve her right to a pension or otherwise to assume its continuance: Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 at 100, per Rathe J; cf Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69 at 81, per Rich J.

56. As far as Beth is concerned, the extremely modest circumstances in which she lives, the continuing prospect of ill health and a continual struggle to make ends meet, satisfy me that adequate provision for her to guard against contingencies which might affect her precarious and fragile situation was not made.

The testator's reasons for the disposition made

57. I am required to have regard to the testator's reasons for making or not making the provision to persons entitled to make application under the Family Provisions Act 1969 (ACT). Section 22 of the Act provides,

22 Relevance of testator's reasons

(1) The Supreme Court shall, in determining an application for an order under section 8 or 9A, have regard to the testator's reasons, so far as they are ascertainable, for making the dispositions made by will or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under this Act.

(2) The Supreme Court may receive in evidence a statement signed by the testator and purporting to bear the date when it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons.

(3) If a statement of a kind referred to in subsection (2) is received in evidence, the Supreme Court shall, in determining what weight (if any) ought to be attached to the statement, have regard to all the circumstances from which any inference may reasonably be drawn about the accuracy of the matters referred to in the statement.

Accordingly, I received in evidence a declaration signed by the testator at the time of signing her will. That statement provided,

I HAVE OMITTED to provide in my Will for my children GEOFFREY CROSSMAN, JON FRANKLIN CROSSMAN and BETH COWAN because I have given Geoffrey and Jon financial assistance during my lifetime and because Beth benefited during my lifetime from the estate of my son Ross Crossman. For these reasons and also because of the support, care and assistance my daughter Dawn has provided to me during my lifetime I consider that it is appropriate to provide in my will for my daughter Dawn.

58. As far as Geoffrey is concerned, the only real financial assistance given to him over and above that provided to his other siblings can be said to be the $10,000.00 which the testator provided to him in 1982. That was provided initially as a deposit for the purchase of the government house that he rented. The money was used, with the testator's concurrence, to purchase a new car, a 1983 Ford Falcon. Comparatively speaking, having regard to the size of the estate and the length of time that had passed since this assistance was given, I do not regard this assistance as justifying the testator excluding provision for Geoffrey from her will.

59. A similar comment may be made concerning the benefit that Beth received from Ross Crossman's estate (who died on 7 August 1997). That benefit was $10,000.00 more than both Geoffrey and Dawn received. They received $32,000.00, Beth $42,000.00. Considering the size of the testator's estate, the receipt of such a sum over and above that which her other siblings received, the time that it was received and the fact that it was not the testator who provided it, in my view, provide no real justification for the course that the testator took in not making any provision at all for Beth.

60. However, I consider that the expression of the support case and assistance provided to the testator by Dawn is an accurate estimate of the testator's regard for Dawn and should be properly reflected in any ultimate disposition that should be made.

61. Having found that adequate provision for the proper maintenance education or advancement in life is not available under the testator's will, s 8 of the Family Provisions Act 1969 (ACT) provides that I may order such provision as I think fit to be made out of the estate. Section 11 requires that I specify the amount and nature of the provision.

62. In determining what provision should be made in the circumstances of this case, I bear in mind the constraint that should govern the exercise of the discretion given to me. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, Dixon CJ said,

The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.

63. In particular, I have regard to the expression of the testator's reasons for making provision for Dawn in the first place and to prefer her above the testator's other children.

64. In all the circumstances, I propose to order that provision be made from the whole of the estate after payment of the just debts and testamentary expenses as to an amount being one quarter of the estate for the benefit of Geoffrey Crossman and an amount being one quarter of the estate for the benefit of Beth Cowan.

65. In this case, I consider that the costs of the parties to these proceedings should be paid out of the estate.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiffs: Mr J Harris, SC with Ms L Donohue