Consideration of the claims
81It is necessary to see how the two claimants on the estate, Alan and Brad, say they have been left without adequate and proper provision for their maintenance, education and advancement in life, and to consider Gregory's claim on the deceased's bounty.
82The majority in Singer v Berghouse said the following in relation to the determination of whether provision is inadequate:
"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."
83It is relevant at this stage to enquire as to whether Brad and Alan have needs that are not met by this provision made to them under the deceased's will. In Collins v McGain [2003] NSWCA 190 Tobias J noted at [42] that:
"... there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies."
84In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 , Dixon CJ said that "what is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them". As stated above, Alan received nothing under the will of the deceased and Brad received $20,000. Relevant to this case where there is a modest estate, her Honour Gaudron J in Singer v Berghouse , albeit dissenting, noted that:
"There may be cases where, given the circumstances and the size of the estate, an applicant will, in practical terms, only succeed by proving needs and requirements that cannot be satisfied from his or her own resources. But that is a practical consideration only..."
85In relation to Alan, the authorities recognise generally that a testatrix has an obligation to their widower, despite recent authority that this is not in all instances the testatrix's primacy obligation (see Bladwell v Davis [ 2004] NSWCA 170 at [19] ).
86The comments by Ipp JA in Bladwell v Davis at [2] are helpful in determining how to balance Alan and Brad's competing claims :
"... where competing factors are more or less otherwise in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than that of the others."
87While Alan and the deceased had been separated for many years prior to the deceased's death, there remains an obligation on the deceased to provide for him. White J in Kalmar v Kalmar [2006] NSWSC 437 at [50 ] made the following observations in this regard:
" First, the bond of matrimony, prime facie, gives rise to a testamentary obligation ( Re Clissold (deceased) (1970) 2 NSWLR 619 at 621 ). Although each case will depend on its own facts, it cannot be assumed that that obligation comes to an end on the parties separating without their being divorced, at least where there has been no disentitling conduct by the claimant ( Re Clissold (deceased) at 621-622; Re Mercer (deceased) [1977] 1 NZLR 469 at 672-673, cited with approval in Palmer v Dolman [2004] NSWCA 361 at [118] )."
88The obligation is even higher in the circumstances of this case, where Alan has made significant contributions to the estate of the deceased. Furthermore I note that in this case there has not been a property settlement between Alan and the deceased, although Brad suggested in evidence that such a settlement was agreed whereby the deceased received the proceeds of the sale of the family home and Alan would have "the superannuation". Apart from the lack of any evidence to support such an allegation, it did not eventuate since there is evidence that Alan gave money above and beyond the proceeds of sale of the family home, including $30,000 on retirement to repay a loan to improve the Port Macquarie property.
89At this stage in Alan Frank's life he needs a home and care. He is in the fortunate situation that Gregory is prepared to care for him and it certainly would be appropriate for him to be cared for in Port Macquarie. It should not be forgotten that after 1985, when the paths of Alan Franks and the deceased separated, he still continued to support in a substantial way the deceased and his son, Brad. It was not only the sale price of the home which went into the Port Macquarie home but also a substantial part of Alan's retirement package after he retired in 1990. At this stage his life expectancy is some 8 years and it is appropriate that some dignified arrangement is made for him to be cared for in the Port Macquarie home after he has contributed so much towards it.
90There have been allegations of behaviour by Brad (and possibly by Alan) that could disentitle them from further provision under the deceased's will. However, the focus of the Succession Act is not finding out where the fault lies in a difficult relationship, but whether, in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he or she in fact did to constitute proper or adequate provision for the plaintiff : Young J in Walker v Walker (NSWSC, 17 May 1996, unreported).
91In particular, these comments by Holland J sitting in equity, in Kleinig v Neal (NSWSC, 13 June 1980, unreported) are useful in the context of claims of disentitling behaviour against Brad:
"...some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed."
92Furthermore, in relation to making a finding that there has been inadequate provision in the context of a difficult relationship, Sackville AJA said in Foley v Ellis [ 2008] NSWCA 288 at [101]:
"The more recent authorities have held that a state of estrangement or even hostility between a testator or testatrix and a claimant does not terminate the obligation of the testator or the testatrix to provide for the claimant. "
93As stated above in these reasons, I have not found the most serious allegations of physical and verbal abuse against Brad are made out. Brad has a need to maintain himself in the context where he has no assets. He says that he also has a need to buy a house since he is presently renting. He submitted that his wife could obtain a loan to finance the purchase (T89) but they will need some funds for part of the purchase price and the expenses.
94In my view there is inadequate provision for the education, maintenance and advancement of life of both Brad and Alan under the deceased's will. Alan of course received nothing under the will.
95As to the form that any order should take in this case, Alan asks the Court for a life estate in the house at Treetop Crescent, Port Macquarie to enable him and Gregory to live there. It is apparent that Gregory has a good relationship with his father and plainly he needs to care for him at home. He cannot care for his father in his father's one-bedroom housing commission unit in which his father now lives.
96So far as Brad's claim is concerned he wishes, with his wife who is presently working and earning a reasonable wage, to buy a house for some $400,000 in the Port Macquarie area. He asks the Court to provide him with a legacy of $200,000 to allow him to buy such a house, which would cover approximately half the purchase price.
97Brad's claim for this sum ignores the existence of the claim by Alan Franks, the widower of the deceased. As discussed above, I consider that Alan's claim must take primacy over Brad's claim, to ensure that Alan is able to live the rest of his life in dignity in secure accommodation.
98In Shearer v The Public Trustee (NSWSC, 23 March 1998, unreported) Young J said on the issue of a parent's obligation to an adult son:
"...as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own."
99Whilst in Lloyd-Williams v Mayfield [2005] NSWCA 189 the court upheld White J's proposition at first instance that there is no rule to the effect that proper provision for an adult and able-bodied child does not extend to providing him or her with a house or money to buy one, it must be noted that that case involved a large notional estate and other beneficiaries under the will would not face hardship if further provision was provided to the applicant.
100In this case, the bounty is small and Alan would stand to suffer hardship if Brad was provided with the legacy of $200,000 he has submitted is appropriate. Furthermore Gregory is facing the prospect of having to borrow money to pay for his costs of the proceedings and pay out the legacies.
101The parties did not say whether they wished to disturb the legacy given to Paula Magnee and I assume from Gregory's evidence that he intends to honour the payment of the legacy. Paula Magnee gave evidence in the case which indicated she is 65 years of age and on a disability support pension.
102In my view Alan Franks' claim for a life estate in the home at Port Macquarie which he would share with Gregory is of such an order that it should have priority over Brad's claim.
103Alan Franks' claim is only for a life interest and this leaves the remainder to be divided between his two sons, Gregory and Brad.
104Although Brad cared for his mother for some years, for which he was mostly paid by a carer's pension, it is clear that he was supported by both his parents for many years before he started working as a carer. His need is not for $20,000 given under the will but for a more substantial deposit on a house.
105In these circumstances, it seems to me that there should be a life interest in favour of Gregory Franks and Alan Franks in the Treetops Crescent, Port Macquarie property determinable on the death of Alan Franks. There should be appropriate provision for substitute accommodation if Alan Franks needs funds to go into a nursing home.
106The interest in remainder should be held equally for Gregory Franks and Brad Franks. The provision for Brad should be in lieu of the provision given to him under the will of the deceased.
107I direct the parties to bring in short minutes and to argue costs.
108In relation to costs, given that this matter has essentially involved inter-party litigation, the usual rules as to costs do not apply. Each party has succeeded to some extent and I am minded to make an order that each party is to bear their own costs.