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[1999] NSWSC 449
mixed. 1861 of 1997: Christine Anne Croucher to receive an additional legacy of $30,000 (in addition to benefits under the will); Nina Tracey Beilby’s claim dismissed; costs of Christine on party-party and...
The Master heard two family provision claims after Christopher Croucher died leaving a will that split certain assets equally between his three children (providing that schooling costs for any child not yet finished school be paid first) and left the residue to his widow Diane. One daughter, Christine, sought more than she would receive under the will; the widow Diane later, out of time, sought further provision following a dispute about superannuation. The Master accepted that a large sum must be set aside for the younger child Emma's schooling and mortgage discharge, reducing the children’s shares to about $26,000 each. Balancing the competing claims and the available residue, the court awarded Christine an extra $30,000 legacy (from residue) but dismissed Diane’s late claim for further provision. Costs orders were made accordingly (paras 20-23, 45, 50, 59-67).
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Christopher John Croucher died on 3 November 1996 leaving a will dated 18 June 1993. Clause 2 of the will (apparently self-prepared by the deceased) identified certain assets to be held for his three children, Nina, Christine and Emma, in equal shares; it also provided that, if any child had not completed schooling, "an adequate amount should be allocated from each of the shares equally to cover this cost" and that moneys owing on a particular mortgage should also be taken from that fund (paras 11-13). The residue of the estate was given to Diane, the widow.
An inventory and the executor's account revealed that superannuation entitlements and other assets meant that, by reason of a trustee decision about payment of superannuation benefits, some significant superannuation monies became payable to the estate (paras 14-20). Evidence established that the future school costs for the deceased's youngest child, Emma (then aged nine and at Wenona), would amount to about $169,901; the mortgage to be discharged from the schooling fund was about $11,051. Together, these deductions consumed roughly $181,000 of the fund specified in clause 2 (paras 21-22).
Christine brought a family provision claim seeking more than the roughly $26,000 she would receive under the clause 2 division; her sister Nina initially joined but discontinued; Diane the widow filed proceedings seeking further provision, but instituted her claim after the 18-month limitation period in s16(1) had expired and sought an extension of time, grounding delay in protracted superannuation negotiations (paras 2-5, 18-20, 47-50).
Master McLaughlin balanced the competing needs, the terms of the will (specifically the schooling allocation), the assets and liabilities and the incomes of the parties. He concluded that Christine should receive an additional legacy of $30,000 from residue (in addition to the $26,000 she would receive under clause 2). Diane's application was dismissed; the Master declined to extend time because, while delay was explained, Diane had not established entitlement to further provision (paras 59-67).
The decision follows a straightforward balancing exercise founded on the Family Provision Act. Key points in the Master\u2019s reasoning:
Clause 2 was given effect to: the Court accepted the evidence regarding the assets that fell within clause 2 (including the superannuation entitlement paid to the estate) and applied the clause's express instruction that schooling costs and the mortgage are to be taken from that fund before equal distribution (paras 11-22). That left each child with about $26,000 absent any family provision order.
The schooling provision for Emma was accepted as significant and potentially open-ended. The Court accepted the Wenona schooling cost evidence ($169,901) and the mortgage figure so that roughly $181,000 had to be deducted, leaving a modest distributable figure (paras 21-22, 44-45).
In assessing Christine's claim, the Master considered her needs (debts about $10,700; proposed wedding contribution; limited assets) against Christine and her partner's combined net income and lifestyle choices (paras 24-31, 54-59). The Court also emphasised the competing claims and the need not to encroach on Emma's specific provision or to benefit Christine at the expense of Nina, who had elected not to pursue more (paras 39-41, 46).
The widow's late claim was considered in its context. Although the widow had an explanation (superannuation proceedings), the Master stated the legal position that extension of time is appropriate only where the applicant has a prospect or basis to obtain further provision; granting an extension where no entitlement exists would be futile (paras 47-50). On the merits Diane's position was otherwise adequate: the will secured for her the family home, the home unit (and increased rental income), a motor vehicle and a residue that after costs left a substantial sum (paras 51-53). Consequently, Diane did not establish entitlement to more.
Balancing these realities, the Master concluded Christine ought to receive a modest augmentative award ($30,000) from residue to enable her to clear debts, contribute to a wedding and have a start in married life, while ensuring Diane's substantial benefits (house, unit, motor vehicle, superannuation payment outside the will, plus residue) were not unfairly eroded (paras 59-61).
This is a single Master\u2019s decision applying well-established Family Provision Act principles rather than announcing new law. The key legal positions applied are:
The Court must, under the Family Provision Act, make provision having regard to competing claims, testamentary dispositions and the means and needs of eligible persons. The decision illustrates application of those principles rather than changing them (see paras 32, 46, 51).
The Court will give effect to express terms of a will such as a clause allocating funds for schooling, and such allocations will reduce the pool available for family provision orders (paras 11-22, 45).
The decision reiterates that extension of the s16(1) 18-month limitation is a discretionary remedy and that the court should be cautious about granting an extension where no substantive entitlement to relief exists (paras 47-50).
After this decision the law remains that family provision orders are discretionary, must respect testamentary intent and competing entitlements, and that time extensions are contingent on establishing a real entitlement; this judgment is an application of those pre-existing principles.
"If any of my children have not completed their schooling, then an adequate amount should be allocated from each of the shares equally to cover this cost..." (para 12). Plain English: The will sets aside money from the children's shares to pay any child's remaining school costs before splitting the rest equally.
"the following assets of the estate should be held for the three children of the deceased equally:" (para 20). Plain English: The court treated the listed items (salary, superannuation declared to estate, a share in a property) as the pool to be split between the three children according to the will.
"there is considerable force in the submission ... that the school education expenses of Emma are open-ended." (para 45). Plain English: The court accepted that school costs for Emma could continue for many years and might use up most or all of the fund allocated for the children.
"If she has not established an entitlement to such further provision, then it would futile for the Court to make an order extending time." (para 50). Plain English: The court will not give someone more time to bring a claim if they cannot show they would have succeeded anyway.
"Accordingly, I propose to order ... Christine should receive an additional legacy ... in an amount of $30,000." (para 59). Plain English: The court decided Christine should get an extra $30,000 from the estate in addition to the share given by the will.
This decision will be directly relevant where:
A will contains a specifically earmarked fund for a child's schooling or similar open-ended purpose which substantially reduces the distributable assets available to other eligible persons; courts will give effect to such earmarked allocations and account for them when assessing family provision claims (paras 11-22, 45).
Multiple family provision applicants have competing claims and the court must decide whether to increase one beneficiary's provision without encroaching upon specific bequests to others who are content with their provision (paras 39-41, 46).
A widow or other eligible person brings a family provision claim after the statutory 18-month period and seeks an extension of time due to prior superannuation disputes; the court will examine whether delay produced prejudice and whether the applicant has a substantive entitlement before extending time (paras 47-50).
The notional estate includes superannuation paid to the estate rather than directly to a dependant, hence bringing superannuation into the calculus under the will (paras 15-20).
The text before me is the Master\u2019s judgment itself and does not report subsequent treatment by appellate courts. The decision applies established principles: effecting express will clauses, balancing competing needs, and conditioning extension of time on substantive entitlement. It does not purport to establish novel legal rules requiring appellate confirmation. Practitioners should check for any later appellate consideration of Croucher v Croucher or relevant statutes for updated authority beyond this decision.
Judicial guidance on quantifying open-ended schooling provisions: The Master observed the possibility that an executor might need to seek judicial advice or commence an administration suit to determine how much of an education fund should be expended (para 45). The decision does not lay down a methodology for apportioning future education costs or providing ongoing judicial supervision.
Extension-of-time practice where delay arises from superannuation disputes: The Master accepted the widow's explanation for delay but emphasised that extension is appropriate only if entitlement exists (paras 47-50). How lower courts should balance the public policy of allowing resolution of superannuation disputes against the statutory time bar remains factual and discretionary.
Treatment of misidentified policies: The Master noted the deceased may have misidentified policies in clause 2 and that if different policies were intended, the children's shares would differ (para 43). The decision exemplifies the evidentiary problems where testators self-prepare wills and misdescribe assets; courts may require further evidence or construction principles in such cases.
Interaction with superannuation law and trusts: The case turned in part on a trustee\u2019s decision to pay superannuation to the estate (paras 18-20). The appropriate route for dependants to obtain superannuation (direct payment to beneficiary vs estate) and consequent effects on family provision rights can raise complex issues not fully resolved here.
Costs and equitable discretion: The Master proposed particular costs orders (party-party for Christine, indemnity basis for Diane as executor) but left finalisation open for argument (paras 62-66). The interplay of costs orders and distribution from residue in family provision matters remains fact-sensitive.
Practitioners relying on Croucher should treat it as an application of established family provision balancing principles, particularly instructive where a will creates a substantial earmarked fund for a child\u2019s education and where a late claim is advanced because of superannuation disputes.
New South Wales Supreme Court CITATION : Croucher v Croucher [1999] NSWSC 449 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1861/97; 4000/97 HEARING DATE(S) : 11 December 1998 JUDGMENT DATE : 13 May 1999
In 1861 of 1997 - Christine Anne Croucher (P) PARTIES : Diane Joan Croucher (D) In 4000 of 1998 - Diane Joan Croucher (P) Christine Anne Croucher (D) JUDGMENT OF : Master McLaughlin
COUNSEL : Mr. M. S. Willmott (P) Mr. J. R. Wilson (D) SOLICITORS : Eric Butler Solicitors (P) Mallesons Stephen Jaques (D) CATCHWORDS : Family Provision; Claims by two adult daughters and by widow; Abandonment of claim by one daughter; Proceedings of widow are out of time; Deceased left an infant daughter (now aged nine) by his second marriage; Will appears to have been prepared by the deceased personally; Will provides for an "adequate amount" to cover the costs of school education of his infant daughter; Effect of that provision upon benefits given by will to each of his three children; Competing claims of adult daughter and of widow upon bounty of deceased; Financial and material circumstances of respective plaintiffs Family Provision Act 1982 ACTS CITED : Wills Probate and Administration Act 1898 DECISION : See paragraphs 66 and 67
SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
1861 of 1997 CHRISTINE ANNE CROUCHER -v- DIANE JOAN CROUCHER 4000 of 1998 DIANE JOAN CROUCHER -v- CHRISTINE ANNE CROUCHER
1 MASTER: These are two proceedings under the Family Provision Act 1982. 2 By summons filed on 7 April 1997 Christine Anne Croucher and Nina Tracey Beilby each claims an order for provision for her maintenance, education and advancement in life out of the estate and/or the notional estate of their late father, Christopher John Croucher (to whom I shall refer as "the deceased"). 3 By summons filed on 22 September 1998 Diane Joan Croucher, the widow of the deceased, also claims an order for provision for her maintenance and advancement in life out of the estate and/or the notional estate of the deceased. 4 The parties were content that the two proceedings should be heard together and that the evidence in the one, so far as was relevant, should be treated as evidence in the other (although no formal order had been made to such effect). 5 At the commencement of the hearing Counsel for the plaintiffs informed the Court that Nina Tracey Beilby, the first named plaintiff, had elected to discontinue her proceedings, and the Court was invited, in due course, to make an order dismissing her claim. 6 The deceased died on 3 November 1996. He left a will dated 18 June 1993, probate whereof was on 22 June 1997 granted to Diane Joan Croucher, the executor named in such will (to whom I shall refer as "Joan" or "the widow"). 7 The deceased, who was aged forty-nine at the time of his death, had married twice. 8 Of his first marriage, in 1968 to Denise Gilbert, were born three children, Nina Tracey (born 17 July 1968, who is presently aged 30), Christine Anne (born 28 April 1971, who is presently aged 28), and Mark (who died, as a result of a motor accident, in May 1988). 9 The deceased separated from his first wife in 1983, and they were divorced in the following year. On 4 January 1984 the deceased and Diane commenced living together, and they married on 9 November 1985. 10 Of the deceased's marriage to Diane was born one child, Emma (born 14 July 1989) who is presently aged nine. 11 By clause 2 of his will (which appears to have been prepared by the deceased personally, and to come within the provisions of section 18A of the Wills, Probate and Administration Act 1898) the deceased, in the events which have happened, gave the following assets to his three children, Nina, Christine and Emma in equal shares as tenants in common; The proceeds of my life insurance (National Mutual), investment account with the AMP Society, my superannuation, death benefits and any moneys owing to me by my employer (Ferntree Computer Corporation) and my share of the property known as 5 Shaw Street, Saratoga NSW. 12 Clause 2 further provided, If any of my children have not completed their schooling, then an adequate amount should be allocated from each of the shares equally to cover this cost. Any moneys owing on the mortgage of the property known as 52 Renwick Street, Leichhardt, should also be taken from the above money. 13 The will then gave the residue of the estate to Diane. 14 The inventory of property filed in respect to the application for probate of the will of the deceased disclosed the following assets Undivided half share as tenant in common in property situate at and known as 52 Renwick Street, Leichhardt, having an estimated value of $135,000 Undivided half share as tenant in common in property situate at and known as 5/9 Nelson Street, Penshurst, having an estimated value of $80,000 Undivided one-sixth share as tenant in common in property situate at and known as 5 Shaw Street, Saratoga, having an estimated value of $20,000 Moneys in bank accounts - $5,515 Shares in companies - $1,721 Salary and leave entitlements - $18,465 Life policy (Australian Mutual Providence Society) - $28,428 Loan insurance - $17,280 Refund of premium on superannuation policy - $108 15 It should be noted that the deceased at the time of his death held no assets coming within the descriptions in clause 2 of his will "proceeds of my life insurance (National Mutual), investment account with the AMP Society". However an AMP Society - Benefit Preservation Plan (in an amount of $624) and a National Mutual Retirement Fund Policy (in an amount of $23,596) are disclosed by the executor as notional estate of the deceased. The former amount has been paid to the three children equally. The benefit under the National Mutual policy (in an amount of $27,600) is to be paid directly to Diane. 16 At the time of his death the liabilities of the deceased consisted of indebtedness to unsecured creditors totalling $5,850. In addition, the deceased had a mortgage account with Citibank in the sum of $166,467 (secured by mortgages over the properties at Leichhardt and at Penshurst), and, in addition, a secured loan from Community First Credit Union in the sum of $17,280. 17 It should here be noted that the other undivided half share as tenant in common in each of the properties at 52 Renwick Street, Leichhardt (which was the matrimonial home of the deceased at the time of his death), and at 5/9 Nelson Street, Penshurst, was held by Diane. In consequence, therefore, of the gift to her of the residue of the estate, Diane has become the owner of the entirety of each of those two properties. By the time of the hearing the half interest in the Renwick Street property had increased to $160,000, and the half interest in the Nelson Street house unit had increased to $90,000. Diane and Emma have continued to reside in the Renwick Street residence since the death of the deceased. (Diane did not contribute to the purchase price of either of the two properties, and all payments on the mortgage loan from Citibank were made by the deceased during his lifetime.) 18 The deceased at the time of his death had a superannuation entitlement from the Kingly Staff Superannuation Fund. Diane, as the widow of the deceased, made a submission to the trustee of that fund that the entirety of the entitlement of the deceased in that fund, in an amount of $219,556, should be paid directly to her as widow of the deceased. Eventually, the trustee decided that that entitlement should be paid, not directly to the widow, but to the estate of the deceased. The widow objected to that decision, which the trustee subsequently ratified. The widow then lodged with the Superannuation Complaints Tribunal an objection to the decision of the trustee. 19 The legal status of that Tribunal was under question, and, ultimately, the widow, rather than await the outcome of a challenge in the High Court of Australia to the status of that Tribunal and then (if the Tribunal still continued in existence) pursue her objection against the decision of the trustee, chose to institute proceedings 4000 of 1998 and claim from the estate of the deceased an order for provision in addition to that given to her by the will of the deceased. Before doing so, however, Diane had already received from the superannuation trustee a total of $20,000 (by way of two separate payments of $10,000 each, made on account of hardship, the first payment being made in June 1997, the second in July 1998). 20 In consequence of the decision of the trustee to pay the superannuation entitlement of the deceased to his estate, rather than directly to his widow, the destination of that asset in the estate is now governed by the provisions of clause 2 of the will. The effect of that clause is that (subject to the qualification relating to the provision for schooling --- Emma is the only child who is entitled to benefit from that provision --- and subject to the qualification concerning the discharge of the mortgage on the Renwick Street property) the following assets of the estate should be held for the three children of the deceased equally: Salary and leave entitlements - $18,465 Superannuation, death benefits - $219,556 Interest in property situate at and known as 5 Shaw Street, Saratoga - $20,000 TOTAL $258,021 21 Evidence was placed before the Court on behalf of Diane concerning the cost of education of Emma, who is presently in Year 4 at Wenona, at North Sydney. That evidence discloses that the future cost of schooling for Emma from the beginning of 1998 until the expected achievement by her of the Higher School Certificate at Wenona will total $169,901. Further, the amount of the outstanding mortgage loan on the deceased's interest in the Renwick Street property was $11,051. 22 Adopting for the present the foregoing figures, it follows, therefore, that from the assets of the estate referred to in clause 2 of the will there must be deducted an amount of about $181,000 before the balance is distributed among the three children of the deceased, being Nina, Christine and Emma. Accordingly, upon those figures, the effect of that distribution will be that each of the three children of the deceased will receive about $26,000. 23 For practical purposes Diane, as executor, will retain the sum of about $170,000, for the future school education of Emma, and will also retain the sum of $11,051 in respect of the liability of the deceased under the mortgage on the Renwick Street property. (A payment in that latter amount was, in fact, made to Citibank on 1 April 1998, the source of that payment being the deceased's mortgage loan insurance.) That property was the family home of the deceased, Diane and Emma at the time of the death of the deceased. In addition, Diane will become the absolute owner of the Renwick Street property and of the Nelson Street home unit (which latter is an investment property, producing income). She retains the National Mutual Retirement Policy ($23,596) and also a Ford Fairmont motor car (to which she ascribes a value of $11,000). 24 Christine is employed as a superannuation fund administrator by Prudential Corporation. She receives a net income, after tax, of $634 a week. She is currently living in a de facto relationship with Robbie Abony, who is also employed by Prudential Corporation, as an administrator, and who receives a net income of $604 a week. They are intending to marry in 1999, and estimate that the cost of their wedding will be between $15,000 and $20,000. 25 Apart from some furniture, Christine's only asset is a 1992 Daihatsu Charade motor car. She presently has liabilities totalling about $10,700. Evidence was placed before the Court concerning the weekly outgoings of Christine and her partner. Those outgoings include a total of $100 a week for cigarettes and a total of $150 a week for entertainment. 26 Diane is employed on a part-time basis, two days a week, as a professional development co-ordinator by Mallesons Stephen Jaques, solicitors. The arrangement as to her days and hours of work (which suits Emma's schooling) has been in place for the past five or six years. For that employment she receives $18,296 (gross) a year. She also receives by way of income a family allowance of $3,660 (gross) a year (from Centrelink). 27 In addition to her interest as tenant in common with the deceased in the house property at Renwick Street, Leichhardt, in which she resides with Emma, and her interest as tenant in common in the home unit at Penshurst (from which she receives rental income of $5,359 a year), the assets of Diane include the furnishings and contents of the Renwick Street residence, together with her personal effects. It should be observed that the furnishings of the house property include some items of antique furniture, to which Diane ascribed an estimated value of between $20,000 and $25,000, and that her personal effects include jewellery, to which she ascribed an estimated value of $2,500. (Neither of those categories of assets were included in the list of her assets set forth in her affidavit evidence; but evidence of those additional assets emerged only under cross-examination at the hearing). 28 In her affidavit of 1 December 1998 in proceedings 4000 of 1998 Diane sets forth details of her current financial and material circumstances. Those details include a schedule of liabilities, totalling $35,723. However, that schedule of liabilities includes $4,261 in respect to provision for education expenses of Emma for terms 3 and 4, 1998, an item which under the provisions of clause 2 of the will is entitled to be deducted from the fund established under that clause. Other items amongst those current liabilities are the amount of $11,051 shown as a mortgage loan over the Renwick Street residence, owing to Citibank, personal loans totalling $14,099, an outstanding HECS debt of $931, and various credit card indebtednesses totalling $5,380. 29 The amount of $27,600 which will be paid directly to Diane from NM Superannuation Pty Limited, being the National Mutual Retirement Fund, will be almost sufficient to discharge the foregoing debts (apart from that in respect to Emma's education, which should be borne by the fund established under clause 2 of the will). 30 That affidavit of 1 December 1998 also has annexed to it details of Diane's current annual income, which discloses that her total net income is $22,395. 31 One of the components of that income is the amount of $5,395, being a one half share of the rental income on the Penshurst home unit. It will be appreciated that, since the death of the deceased, Diane is entitled to the entirety of the rental on that home unit, and that, in consequence, her income from that source will now be $10,718 a year. Thus, after provision is made for income tax on that additional income, Diane's total net income will increase by about $4,000, to about $26,400. She will, in addition, have a capital fund comprising part of the residue of the estate, which should, if invested, produce a further increase in her annual income. 32 Christine, as a daughter of the deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, she has the standing to bring her present proceedings. Diane also, as the widow of the deceased, is an eligible person, within paragraph (a) of that definition. As such, she also has the standing to bring her present proceedings. 33 I have already observed that Christine (in common with her sister Nina and her half sister Emma) under the terms of the will receives from her father's estate the sum of $26,000. Apart from those three amounts (totalling about $58,600) the entirety of the estate passes to Diane, to be held by her either on trust to pay for Emma's schooling (as to about $170,000) or to discharge the indebtedness of the deceased in respect to the mortgage on the Renwick Street residence (as to $11,051), or beneficially for herself (as to the residue of the estate). 34 Christine seeks an order that she should receive from the estate of her father a sum greater than the $26,000 which she will receive under the terms of his will. Diane seeks, in effect, an order that she receive, either beneficially for herself, or on trust for Emma's education, the entirety of the estate of the deceased, and that neither Christine nor Nina should receive any benefit from their father's estate. 35 The evidence disclosed that the deceased was a generous and loving parent to each of his three children. He contributed to the acquisition of a motor vehicle and to various residences (usually rented) for Christine. Originally the home unit at Penshurst was to have been purchased by Christine and her father conjointly. 36 Similarly, although some attempt was made on the part of Christine to suggest the contrary, the evidence discloses that the deceased was a loving and devoted husband to Diane. 37 It was submitted on behalf of Christine that she should, in addition to the amount of about $26,000, which she will receive under the terms of the will, receive from the estate an additional amount, sufficient to discharge her debts, to make a contribution towards the cost of her wedding, and to pay for a deposit on a house. 38 Although no details were given, it was estimated by Christine that the cost of her wedding would be between $15,000 and $20,000. I assume that that cost will be borne more or less equally between Christine and her partner. Christine's debts total about $10,600. 39 It will be appreciated that any order which might be made in favour of Christine must be made in the light of the competing claims upon the beneficence of the deceased. Those competing claims are the claims of the other two children of the deceased and the claim of the widow. The deceased recognised an obligation to make provision for each of those four persons, being his widow and his three children. Nina, by deciding to discontinue her present proceedings, must be taken to be satisfied with the provision made for her under the will of the deceased. Christine seeks to obtain more. Any additional amount which she might receive from the estate must, of necessity, come from the interests of Nina, Emma, or Diane. 40 Although Nina now does not wish to receive an amount greater than that provided for her by the will, her present attitude of not pursuing her claim for further provision does not mean that she abandons or does not to assert her entitlement to receive the benefit given to her by the will. I would be reluctant, in the circumstances of this case (and in the absence of any submission by either of the other plaintiffs that I should do so), to benefit Christine at the expense of Nina. I certainly would not encroach upon the interest directly given to Emma in order to benefit Christine. 41 I have already observed that the deceased recognised an obligation to make provision for his widow and each of his three children. However, it is apparent from the terms of clause 2 of the will that the deceased believed that his assets included life insurance with National Mutual and an investment with the AMP Society. It would appear that the deceased did, in fact, have life insurance, but not with National Mutual. Accordingly, his life insurance (with Australian Mutual Provident Society) in an amount of $28,428 forms part of residue and thus passes to Diane. Similarly, it would appear that the deceased had held (apparently conjointly with Diane) a policy with National Mutual, but that that policy was not one of life insurance. Diane thus is entitled to and will receive (although directly, and not as a result of the provisions of the will) an amount of $27,600 from the National Mutual Retirement Fund Policy. 42 In addition, it will be appreciated that the hardship payments totalling $20,000 received by Diane have the effect of reducing by that amount the only substantial asset which comes within the provisions of clause 2 of the will. 43 Although it is difficult to be absolutely certain concerning the intentions of the deceased in this regard (since, as I have already observed, the will appears to have been prepared by the deceased personally), it is possible that it was the intention of the deceased that the assets which should be subject to clause 2 would include the life policy with AMP, and the retirement policy with National Mutual, with the consequence that the assets which he intended to be subject to the provisions of clause 2 of the will would have had a total value exceeding that which they in fact have. If so, the share of each child would in consequence be greater. 44 I have in my calculations proceeded upon the basis that the figures presented by Diane concerning the education of Emma at Wenona should be accepted. Evidence was given concerning the thought and care which was given by the deceased, and by Diane, to the education of Emma and to their choice of an appropriate school for her. It has been said that the best investment which parents can make is in the education of their children. 45 Nevertheless, there is considerable force in the submission on behalf of Christine that the school education expenses of Emma are open-ended. Those expenses could, at least in possibility, exhaust the entirety of the fund established under clause 2 of the will, with the consequence that the children would receive nothing. It may well be that ultimately it becomes necessary for the executor to seek judicial advice from the Court (or even to embark upon an administration suit) in order to establish how much of that fund should properly be expended on the schooling of Emma. Otherwise there can be no certainty as to the amount which should properly be deducted for that purpose from the fund. Unless there be such certainty, the amount which will eventually pass to the children cannot be ascertained. 46 The claim of Christine for a benefit exceeding the $26,000 given to her by the will of the deceased and the claim of Diane for the totality of the estate must be regarded essentially as being claims in competition with each other. If any order is made in favour of Christine the practical consequence will be that, to the extent of such an order, the benefit to be given to Diane will be reduced. Similarly, if any order is made in favour of Diane, the practical consequence will be that the benefit to be given to Christine will be reduced. I would be reluctant to benefit Diane at the expense of Nina. I certainly would not encroach upon the interest directly given to Emma in order to benefit Diane. 47 It should here also be noted that the proceedings of Diane were instituted some four months after the expiration of the eighteen months limitation period provided by section 16 (1) of the Family Provision Act. Diane seeks an order for extension of the time in which to institute her proceedings. 48 In support of such an application for extension of time Diane relied upon the protracted negotiations conducted by her solicitors with the trustee of the superannuation fund, and the subsequent appeal by her from the decision of the trustee to the Superannuation Complaints Tribunal, and the presently pending challenge in the High Court of Australia to the constitutionality of the establishment of that Tribunal. She submitted that there has been no prejudice to Nina or Christine as a result of making her application out of time. 49 As I understand it, it was submitted on behalf of Diane that if the trustee had paid directly to her the amount of superannuation entitlement of the deceased, rather than paying it to the estate, it would not have been necessary for Diane to have instituted her present proceedings. 50 I am satisfied that, if Diane has otherwise established an entitlement to further provision out of the estate of her husband, it is appropriate that the Court should also make an order extending the time for the institution of her proceedings. If she has not established an entitlement to such further provision, then it would futile for the Court to make an order extending time. 51 It has been said that the duty of a testator to his widow is, to the extent that his assets so enable him, to ensure that she is secure in her residence, that she is able to live at a standard no less than that which she enjoyed during the lifetime of her husband, and that she has a fund to meet contingencies. 52 In the instant case Diane is secure in her residence. The will makes provision for her to receive the interest of the deceased as tenant in common in the Renwick Street residence. In consequence, therefore, Diane will be the absolute owner of the totality of that residence. The will also makes provision for a fund to be available to discharge the outstanding mortgage on that house property. In consequence, therefore, the outgoings of Diane will be reduced by the amount which she has to the present being paying in respect to that mortgage. She will also have, under the terms of the will, the residue of the estate, about $128,000. 53 In addition to the house property and the home unit and a Ford Fairmont motor vehicle (to which Diane ascribed a value of about $11,000), the residue of the estate will, upon my calculations, total about $128,000, from which must be deducted at least Diane's costs of about $25,000. That is, apart from becoming the owner of the entirety of the house property and of the home unit, Diane will receive a motor vehicle and about $100,000. As a result of her becoming the owner of the entirety of the home unit, Diane's income from that source will increase from $5,359 to $10,718. In addition, under the terms of the will, there will be a fund sufficient to guarantee payment for Emma's schooling. In all the circumstances, I am not satisfied that Diane has established an entitlement to any greater provision from the estate than that which she receives under the terms of the will. 54 I have already referred to the submission on behalf of Christine that, in addition to the benefit given to her under the will, she should receive from the estate an additional amount which would be sufficient to discharge her debts, to make a contribution towards the cost of her wedding, and to pay for a deposit on a house. Christine's debts total about $10,700. They include a loan in respect to a motor car ($5,800), St. George Visa Card indebtedness ($1,245), AGC ($2,370), Grace Bros ($750), loan from a family member ($600). Christine's de facto partner, Mr Abonyi, has liabilities totalling almost $4,700 (consisting of a personal loan from Select Credit Union, $4,125, and a Select Credit Union Visa Card indebtedness, $550). His current assets consist of personal property having an estimated value of $200 and a credit balance with Select Credit Union of $115. 55 Christine would require an amount of $10,700 to pay off her own liabilities, or $15,400 to pay off the totality of the liabilities of herself and her de facto partner. If she and her partner contribute equally to their wedding, then her contribution would be between $7,500 and $10,000. 56 I do not consider that Christine has established an entitlement to have her father, or his estate, provide for her a deposit on a house. In any event, no evidence was placed before the Court concerning any residences which Christine and her partner might be desirous of acquiring, or the cost of any such residences. Nevertheless, the evidence discloses that the deceased during his lifetime gave considerable assistance to Christine when she was arranging accommodation (usually rented) for herself. I have already referred to the fact that originally it was intended that the Penshurst home unit was to be purchased by Christine and her father conjointly, and that it was only when Christine did not proceed with that purchase that her father then joined with Diane in ultimately effecting the purchase of that home unit. 57 Had he lived, it is possible, indeed probable, that the deceased would have given financial assistance to Christine towards the acquisition of a residence upon her marriage. However, the Court must look to the facts and circumstances as they obtain at the present time, and, in particular, to the competing claims of Christine on the one hand and Diane and Emma on the other hand upon the testamentary bounty of the deceased. 58 Christine and her partner have a conjoint income of $1,238 net a week (that is, in excess of $64,000 net a year). I recognise that her partner has an obligation to pay maintenance and other expenses (totalling about $8,500 a year) for a child of a former relationship. Nevertheless, I also note that the totality of the amounts which Christine and her partner spend on cigarettes and entertainment is $13,000. 59 In all the circumstances, however, I have reached the conclusion that it is appropriate that, in addition to the benefits to which Christine is entitled under the will of the deceased (being in amount of about $26,000), she should also receive an amount which, taken with that earlier benefit, will enable her to discharge her present debts and liabilities, to contribute to her wedding, and to give her a start upon her married life (if not by providing an amount sufficient for a deposit upon a residence, at least going some way towards that purpose). Accordingly, I propose to order that, in addition to the benefits given to her under the will of the deceased, Christine should receive an additional legacy from the estate of the deceased in an amount of $30,000. 60 It will be appreciated that that additional legacy will be payable out of residue, and will thus reduce by that amount the funds available in residue (totalling, upon my calculations, about $128,000). Further, from residue there must also be deducted, not only the costs of Diane to which I have already referred, but also the costs of Christine. There will still, however, remain in residue, even after the payment of such a legacy and the payment of the costs of both Christine and Diane, a cash amount of about $50,000, which (in addition to the other assets to which I have already referred) will pass to Diane under the terms of the will. 61 The competing claim of Diane as the widow of the deceased will not, in my view, have the effect of reducing, or even extinguishing, the proposed legacy of $30,000 to Christine, an entitlement to which Christine has otherwise established. My reason for this conclusion concerning the competing claim of Diane is that, not only will she receive the foregoing cash amount of residue, but she has, in addition, already under the terms of the will received the entirety of the Renwick Street residence, the entirety of the Nelson Street home unit (with a concomitant increase of $5,359 in her annual income), together with a motor car, and also will receive, directly and not as a result of the provisions of the will, the amount of $27,600 from the National Mutual Retirement Fund. 62 I have heard some submissions as to costs, including the costs of Nina. However, I will give to the parties an opportunity, should they so desire, to make further submissions in respect to costs, in the light of my foregoing conclusions. 63 My present view is that in proceedings 1861 of 1997 each of Christine and Diane should receive her costs out of the estate, those of Christine being on the party and party basis, and those of Diane, the executor, being on the indemnity basis. Since it was only at the commencement of the hearing that Nina abandoned her claim, she certainly would not be entitled to receive any order for her costs out of the estate. My present view is that the costs of that hearing were not appreciably increased by the fact that Nina had been named as a plaintiff in the first proceedings. The affidavit evidence which it was necessary for Diane to put on, both in her capacity as executor and in support of her own claim, was not increased by the involvement of Nina. Unless any party wishes to submit to the contrary, it seems to me appropriate that I should make no order in respect to the costs of Nina, to the intent that she should bear her own costs of the proceedings, but that she should not be required to pay the costs of any other party. 64 Similarly, it seems to me that neither the evidence nor the hearing time was significantly increased by the institution by Diane of proceedings 4000 of 1998. In the light of my conclusion in those proceedings, I consider it appropriate that there be no costs order in those proceedings, to the intent that each party thereto will bear her own costs of those proceedings. 65 Accordingly, unless within seven days of the date hereof, any party makes application to my Associate to have the matter listed for argument as to costs, I make the following orders: 66 1861 of 1997 Christine Anne Croucher v Diane Joan Croucher
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Croucher
Croucher
1861 of 1997: Christine Anne Croucher to receive an additional legacy of $30,000 (in addition to benefits under the will); Nina Tracey Beilby’s claim dismissed; costs of Christine on party-party and costs of defendant on indemnity basis to be paid from the estate (para 66). 4000 of 1998: Diane Joan Croucher’s proceedings dismissed; no order as to costs (para 67).