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[2009] NSWSC 1259
Supreme Court of NSW
2009-11-23
Barrett J
Original judgment source is linked above.
CITATION : Frizelle v Old [2009] NSWSC 1259
HEARING DATE(S) : 19/08/09, 20/08/09, 10/09/09, 11/09/09
DECISION : Order for provision out of father's estate. No order for provision out of mother's estate.
CATCHWORDS : SUCCESSION - family provision - claim by adult daughter on estates of both parents - plaintiff one of two adult children - estate left to them equally by mother - father's estate given predominantly to son - some estrangement between plaintiff and father until last years of his life - whether plaintiff left without adequate provision - held inadequate provision by father but not by mother - limited relief granted
LEGISLATION CITED : Family Provision Act 1982, ss 6(1)(b), 7, 9(2) Uniform Civil Procedure Rules 2005, Schedule 7
Benney v Jones (1991) 23 NSWLR 559 Clemens v Byrnes [2007] NSWSC 421 Cropley v Cropley [2002] NSWSC 349 Eather v Maher [2006] NSWSC 746 Fellows v Paterson [2002] NSWSC 190 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Kalmar v Kalmar [2006] NSWSC 437 Kleinig v Neal (No 2) [1982] 2 NSWLR 532 CASES CITED : Nicholls v Hall [2007] NSWCA 356 Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1996) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Re Fulop (1987) 8 NSWLR 679; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Re Gilbert (1946) 46 SR (NSW) 318 Scott v Scott [2009] NSWSC 567 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin & Ors [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (unreported, NSWSC, 17 May 1996)
PARTIES : Coralie Susan Frizelle - Plaintiff Robert James Old - Defendant
COUNSEL : Mr A L Hill - Plaintiff Mr S J Burchett - Defendant
SOLICITORS : Johnson & Sendall - Plaintiff Manfred Dougall & Company - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
4973/08 CORALIE SUSAN FRIZELLE v ROBERT JAMES OLD JUDGMENT 1 Two applications are advanced in these proceedings under the Family Provision Act 1982. They are made by Coralie Susan Frizelle in respect of the estate of her late mother, Dulcie Mildred Old ("Mrs Old") who died on 6 July 2007 aged 83, and the estate of her late father, Cedric James Old ("Mr Old") who died on 26 April 2007 aged 92. Mr Old and Mrs Old were married but had lived separately from one another for some forty years. 2 By summons dated 30 September 2008, the plaintiff applies for provision out of each estate for her maintenance, education and advancement in life. 3 The plaintiff, now aged 53, is one of the two children of Mr Old and Mrs Old. The other child is her brother Robert James Old, aged 51. 4 Robert James Old is the sole defendant. Mrs Old's will 5 Mrs Old left a will dated 20 June 1980. She appointed the plaintiff and the defendant executors. The plaintiff, however, renounced probate and a grant was made to the defendant alone on 18 December 2008. 6 Mrs Old left to the defendant any furniture and effects of hers in any house occupied by Mr Old. She devised her house in Coromandel Street, Goulburn to the plaintiff and the defendant in equal shares. The residue was also to pass to the plaintiff and the defendant in equal shares.
Assets in the estate of Mrs Old 7 The Coromandel Street house was sold before Mrs Old's death. Soon after receipt of the sale proceeds, the defendant, as Mrs Old's attorney (and apparently at her request), arranged for part of the proceeds to be paid to the plaintiff and the defendant as gifts from their mother. In the period January 2007 to June 2007, the plaintiff received payments totalling $42,000 and the defendant received payments totalling $40,000. There is no suggestion that these sums should be brought to account as notional estate. 8 The present assets of the estate are cash of $138,265.23 and furniture and chattels (including a caravan) with an estimated value of $29,500, a total of $167,765.23. The approximate costs incurred, in regards this estate, are as follows: The plaintiff: $40,000 (based on a total costs estimate of $80,000 for the entire proceedings) The defendant: $30,000 9 The net distributable estate is therefore $97,765.23.
Mr Old's will 10 Mr Old left a will dated 16 December 2002. Probate was granted on 7 June 2007 to the defendant, the sole executor named in it. 11 There were only two relevant dispositions in the will. First, a property known as "Sunset", some 45 kilometres from Goulburn, together with the sum of $10,000, was given to the Plaintiff. Second, the residue of the estate was given to the defendant. Assets in the estate of Mr Old 12 Mr Old owned two rural properties at his death: "Sunset" specifically bequeathed to the plaintiff; and "Somerset", a larger property situated nearby, which formed part of the residue. 13 There is conflicting evidence about value. The plaintiff relies on a market appraisal by Elders Real Estate (conducted on 15 April 2009 and updated 7 August 2009) giving a value of $750,000 to $950,000 to "Somerset" and a value between $120,000 and $140,000 to "Sunset". 14 The defendant relies on valuation reports dated 30 July 2009 of Douglas Walker & Associates. They valued "Somerset" at $610,000 and "Sunset" at $140,000. 15 I prefer the report by Douglas Walker & Associates. The Elders Real Estate document is a single page market assessment provided by a real estate agent and describes itself as "an estimate of the expected sale price, not a valuation, [an] estimation based on recent sales in the vicinity". The range it gives in relation to "Somerset" is broad. 16 Douglas Walker & Associates, by contrast, are registered valuers. Their report contains an acknowledgement under Schedule 7 to the Uniform Civil Procedure Rules 2005. The report is comprehensive, detailed and thorough. 17 I proceed, therefore, on the basis that "Sunset" and "Somerset" should be regarded as valued at $610,000 and $140,000 respectively. 18 In addition to the realty, the estate of Mr Old consists of cash at bank totalling $177,502.91 and furniture and chattels with an estimated value of $6,000. The total of the assets is $933,502.91. The approximate costs incurred, in regards this estate, are as follows:- The plaintiff: $40,000 (based on a total costs estimate of $80,000 for the entire proceedings) The defendant: $50,000. 19 The net distributable estate is therefore $843,502.91. Family History - the early years 20 In the account that follows, it will be convenient to refer to the plaintiff as "Coralie" and the defendant as "Robert". In using their first names, I intend no disrespect. 21 Mr Old and Mrs Old were married on 8 June 1956. They went to live at "Somerset". Their two children were born while the couple lived there. They continued at "Somerset" as a family until 1969 when Mr Old and Mrs Old separated. Coralie and Robert were then aged 13 and 11. Coralie and her mother moved to the house in Coromandel St, Goulburn while Robert continued to reside with his father at "Somerset". The parents' separation was apparently quite acrimonious. There was a severe breakdown in relations between them. 22 Coralie attended secondary school in Goulburn. She left school a month before her sixteenth birthday and before she had completed the school certificate. She went to work at a brush factory in Goulburn and continued to live with her mother. 23 Between 1971 and 1974, Robert also attended high school in Goulburn. He stayed with his mother and sister at Coromandel Street on week nights during the school term. Weekends and school holidays were spent with his father at "Somerset" assisting in the running of the property. Robert completed his school certificate in 1974 and, encouraged by his father, left school to work full time on the family properties. His father, aged 60 at the time, needed his help.
24 Robert returned to live with his father at "Somerset" in 1974 and became deeply involved in the farming and grazing business. A partnership was formed between father and son to run both "Somerset" and "Terramungula", another property in which his father had an interest. Robert took only small cash drawings from the partnership but he received some other benefits such as payment of personal expenses, accommodation, food and use of the land. 25 In April 1975, while working at the brush factory, Coralie was involved in a serious motor accident. Three vertebrae were crushed. Coralie was incapacitated for about three months. She says that the injury continues to give her pain and prevents her from doing repetitive bending and lifting, so that her capacity to gain employment is limited. Mrs Old and Coralie move to Kiama 26 In 1976, Coralie and Mrs Old moved to Kiama. They purchased a unit in Holden Place as tenants in common in equal shares. The house in Coromandel Street, Goulburn was retained. Mrs Old thought that the warmer climate in Kiama would assist Coralie's recovery from her injury. Robert says that Coralie received her share in the Kiama unit as a gift from her mother. There is evidence, however, that Coralie provided $1,500 towards the purchase. When the unit was sold, at a much later stage, Coralie got back her $1,500 and the balance of the proceeds of sale was retained by Mrs Old. 27 In 1976, while living together in Kiama, Coralie and her mother bought a retail business known as "The Outback Jeanery". They operated the business as partners for about two years. The takings variedly greatly from day to day. They were generally quite modest, although with occasional better days. 28 The business suffered setbacks in 1977. First, a hot water service in the unit above the premises failed and water leaked through the ceiling into the shop, causing significant damage. Second, torrential rain caused the shop to flood and there was again significant damage. 29 Coralie says that these setbacks resulted in a decision to close the business and dispose of the stock. Robert says that the business was closed because Coralie was neglecting it and not pulling her weight. 30 It was put to Coralie that she was often late in opening the shop and was absent on many occasions. The criticisms were based on diary entries made by Mrs Old and a conversation Robert supposedly had with his mother in which she said: "When the business was going well, it made over $900.00 in a day. It's a shame. Coralie is so lazy and was not prepared to work". 31 True it is that absences of Coralie are noted in the diaries from time to time. The entries however usually speak of Coralie having been given permission to be absent, for example, to go swimming on hot days in December. Sometimes, she left early to prepare meals, sometimes Mrs Old did so. Mrs Old may have indulged Coralie to a certain extent. 32 The diaries refer in some places to particular tasks of a useful or constructive kind performed by Coralie. There are also references to Coralie and the mother closing the shop early when trade was slack. 33 The diaries also record that Coralie was left in charge of the shop by her mother fairly frequently. The mother went to Goulburn and back regularly as her aged mother was there. Sometimes she returned on the same day however on other occasions she stayed overnight and occasionally for two or more nights. Mrs Old still maintained her house in Coromandel Street, although her mother was by then in a nursing home. 34 Mrs Old was also absent from Kiama at other times, including in connection with the sale of her parents house at Wentworthville. Again, Coralie was left in charge. The diaries confirm that the business was run as a partnership and that the plaintiff and the deceased shared the responsibilities of the business. The particular criticisms levelled at Coralie cannot be regarded as substantiated. 35 The diaries confirm that, during the Kiama period, there were occasional visits by Mr Old and Robert, with Robert visiting more often than Mr Old. Visits were generally for birthdays and other family occasions. An example is Coralie's 21st birthday celebration in Kiama, at which Mr Old gave her a pearl necklace. 36 When the Kiama business closed down, Coralie took a job as a sales assistant at a Christian book shop in Kiama. She continued in that employment for about a year and then moved back to Goulburn where she was unemployed for some time before commencing as a live in carer for an elderly person, a position she held for nine months. Transfer of Mrs Old's interest in "Lucy's and Wheeldon's" 37 In 1976, shortly before Mrs Old and Coralie went to Kiama, there was a transaction between Robert and Mrs Old under which her one-half interest in "Lucy's and Wheeldon's", a grazing property at Collector, was transferred to Robert. The other one-half interest was owned by Mr Old. 38 The circumstances of this transfer, particularly whether there was any consideration for it, are in dispute. The plaintiff suggests that Mrs Old's interest passed to Robert by way of gift. Robert says that he paid $7,500 for it. 39 Coralie relies, in this respect, on the diaries of Mrs Old. Counsel for the plaintiff brought the court's attention to myriad entries in these meticulously kept diaries. One, for 29 January 1975, was as follows:- "I told him I had a surprise for him, that I was going to give him my share in Lucy's. He was very excited and raced out to the car." 40 An entry of 13 August 1975, however, is in these terms: "Went to Department of Social Security and made statement about $7,500 sale of land to Robert and that I would be reimbursed from sale of Mother's house." 41 The defendant, both in his affidavit evidence and under cross-examination, maintained that he had paid to his mother $7,500 for her interest in the land. Under cross-examination he explained that he had made an initial payment of approximately $2,000 to his mother and had paid the remainder over an eighteen month period. 42 There is some support for this in the diaries. An entry of 24 October 1975 where Mrs Old records a payment by Robert of $500 and forwarding of the payment to Mrs Old's solicitor. Robert says that this related to the transfer of the interest in "Lucy's and Wheeldon's". 43 Robert's version gains further support from a deed of conveyance dated 11 June 1975 between Mrs Old ("Vendor") and Robert ("Purchaser") the recital and operative parts of which are: "Whereas the said Vendor has agreed to sell her share of interest in the said hereditaments (and also in certain other lands held under the provisions of the Real Property Act 1900) to the said Purchaser for the sum of Seven Thousand Five Hundred Dollars ($7500.00). NOW THIS DEED WITNESSETH that in consideration of the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS (which sum is the same that mentioned in a certain Memorandum of Transfer of even date herewith made between the same persons as are parties hereto) now paid by the said Purchaser to the said Vendor …" 44 In the light of the other evidence, I am prepared to take at face value the statements in the conveyance. The 1980s and 1990s 45 In 1982 Mr Old moved from "Somerset", where he and Robert were living, to "Terramungula". Robert stayed at "Somerset" and helped his father on both properties. 46 Robert married his wife, Janelle, in 1984. "Somerset" became their family home. Coralie also married in 1984. She and her husband moved to Griffith to do seasonal fruit picking work. 47 In August 1985, Coralie's husband was sentenced to a term of imprisonment. He had prior convictions and had been imprisoned for serious offences. Coralie knew this before she married him.
48 While Coralie's husband was in prison, Robert and Mrs Old heard second-hand of threats he was said to have made against Coralie. Mrs Old told Coralie about this. A policeman Coralie knew later gave her reason to think the threats were real.
49 Coralie left at this time to travel around Australia. She did seasonal fruit picking for about three years. She did not settle in any one place and was continuously moving around regional areas. Her marriage was dissolved in October 1991. Coralie had no contact with her husband after he went to prison and took steps to avoid him after learning of the threats he was said to have made. 50 In April 1986, Coralie's husband was released from gaol. She understood that, as part of his parole conditions, he was not allowed to leave New South Wales. In order to avoid him, she decided to move to Western Australia. 51 During this period Mr Old continued to reside at "Terramungula", while Mrs Old was living at Coromandel Street and Robert and his wife Janelle had settled at "Somerset". Robert and Janelle had children in February 1985, October 1986 and June 1996. 52 In 1988, Mr Old was diagnosed with a facial melanoma and had to go to Royal Prince Alfred Hospital in Sydney for surgery. He was taken there by his niece, Coralyn Whiting. She and her mother (Mr Old's sister) took him back to "Terramungula" about eight weeks later after he had spent a period of convalescence at their home at Normanhurst.
53 Also in 1988, Coralie entered into a de facto relationship. She was living in Victoria at the time. The relationship continued for about twelve months. Coralie gave birth to her first child in July 1989, about five months after her separation from the child's father. 54 Coralie moved back to Goulburn shortly before the child's birth. She lived first with her mother and later in a unit in Deccan Street. She lived there with her baby son until she moved to Perth in January 1991. She says that she moved to Perth because of the threats made by her former husband. While living in Perth, she changed her surname to Frizelle. She says that this was to avoid her former husband. 55 In 1992, Mr Old took steps to transfer "Somerset" to Robert as a gift. Mr Old instructed solicitors to prepare the necessary documents and arranged for the property to be valued for stamp duty purposes. In the end, he did not go ahead with the transfer because of advice that it would adversely effect his veterans affairs pension entitlements. 56 In 1993, Coralie entered into another de facto relationship. It continued until August 1998. Coralie lived throughout in Perth. There is one child of this relationship, a daughter born in February 1996. Coralie continued to live with her children in Western Australia until 2004. 57 The "Lucy's and Wheeldon's" property, owned by Mr Old and Robert, was sold in 1998 for $210,000. Although they owned the property in equal shares, Mr Old allowed Robert to have most of the proceeds of sale. Mr Old took only about $10,000. 58 Robert used the proceeds from the sale of "Lucy's and Wheeldon's" to purchase land in Goulburn and to build a house there. He then sold this property and applied the proceeds towards the purchase, jointly with his wife, of a house in Cowper Street, Goulburn. The shortfall was provided by Mr Old. He contributed $40,000 toward the purchase price of $298,500. Mrs Old's health declines 59 Mrs Old continued to live alone at Coromandel Street until the beginning of 2004. There were concerns about her health and safety. She was becoming infirm and her mobility was impaired. Coralie was aware of the problems both through her own observations when she visited her mother from Perth in April 2004, and from information passed on by Robert and his wife, Janelle. 60 Janelle arranged some home support for Mrs Old. She had help with showering, personal care and housework. It became apparent, however, that Mrs Old required more assistance. She was admitted to St. John of God Hospital for about four weeks in March and April 2004, and was again admitted in May after she had suffered another fall. 61 Mrs Old did not return to Coromandel Street after her hospitalisation in May 2004. On 17 June 2004, the Aged Care Assessment Team (ACAT) assessed Mrs Old and concluded that she needed high-level residential aged care. An application for residential placement was made and Mrs Old eventually entered Mirrambeena Nursing Home. 62 Coralie says that, before this placement, she told Robert and Janelle, on a number of occasions, that she intended to return to Goulburn to look after her mother at Coromandel Street after her son Marcus had completed Year 10 in Perth at the end of 2004. She says that she was therefore surprised to find her mother in a nursing home. Robert and Janelle say that Coralie was made fully aware of the situation and agreed with the nursing home placement.
Coralie returns to Goulburn 63 When Coralie returned to Goulburn in December 2004, she enquired about the possibility of living with her children at her mother's house in Coromandel Street. The house, however, was occupied by Robert's elder daughter. Robert says that Mrs Old was worried about the house being empty. Mrs Old, at least initially, intended to return home after her hospitalisation in May 2004. She did not want the house to fall into disrepair and suggested that Robert's daughter occupy it. The daughter, who went to live in the house with her partner, did some repairs and provided general maintenance. 64 There is some evidence that Robert's daughter paid rent but it seems to have been on an ad hoc basis. Robert, to whom the rent was paid, used the money mainly for upkeep of the house but accepted in cross-examination that he used some of it to help him get through the drought. He says that his mother agreed to this. 65 Some time in 2005, when it became apparent that Mrs Old would not be returning to her home, the furniture and other contents were put into storage.
66 Because Coralie could not live at Coromandel Street when she returned from Perth, Robert suggested that she move into the property at "Terramungula" where Mr Old was living alone. He was in need of care. He had recently undergone eye surgery and his physical and mental health was declining. Coralie moves to "Terramungula" 67 Coralie and her children moved into "Terramungula" in December 2004. Coralie became the primary carer for her father. She provided his meals, gave him his medicine, drove him to medical appointments and did the washing and cleaning. Robert visited and also provided assistance with heavier work such as lawnmowing and gardening. 68 The living conditions at "Terramungula" were not ideal. Coralie and her daughter shared a bedroom. Her son slept in the lounge room. Mr Old had been struggling to cope with general house keeping. When Coralie and her children arrived, the house was dirty and cluttered. Coralie made inquiries about home care assistance for Mr Old. Robert said there was no money for this. 69 Living with Mr Old was difficult for Coralie. He had problems with his eyesight, mobility and personal hygiene. He also suffered from dementia to some extent. His behaviour was irrational and inappropriate at times. But he also wanted to be independent. The situation was taxing for Coralie.
70 In May 2005 there was a discussion between Coralie, who was struggling to cope, and Robert about Mr Old's future care. Coralie asked Robert to arrange for their father's admission to St John's hospital. She says that she meant this to be a temporary measure during winter. The homestead at "Terramungula" was poorly insulated. It became very cold in winter. Mr Old used to sit very close to the heater and sometimes fell asleep. He burnt himself on a number of occasions but continued to sit against the heater, despite warnings from Coralie. She says that it was concern for her father's safety that caused her to ask Robert to arrange hospitalisation. 71 Mr Old remained at "Terramungula" under Coralie's care throughout winter 2005. At Christmas 2005, Mr Old's niece Coralyn spent some time at "Terramungula". She gave evidence that Mr Old's deteriorating health was quite apparent, that he was suffering from the onset of dementia and loss of cognitive ability. 72 In early 2006, there were discussions between Coralie and Robert about selling "Sunset". She asked him to use the power of attorney he held from Mr Old to sell "Sunset" so that Coralie could buy a house in Goulburn. She was seeking, in essence, an acceleration of her inheritance. There was a problem with this. Mr Old's poor health and the increasing likelihood that he would need to move into a nursing home meant that his funds had to be conserved so as to be available for his care, including, perhaps, by way of a nursing home bond. Mr Old leaves "Terramungula" 73 On 28 April 2006, Mr Old was taken by ambulance to hospital because of severe diarrhoea. The hospital recorded that he was malodorous, had an unkempt appearance, was dehydrated and appeared to be suffering some degree of dementia. Mr Old underwent urgent podiatry treatment because his toenails had not been cut for a long time. He was discharged on 6 May 2006 into Coralie's care. Ten days later, he was moved to Clinton Villas, an aged care facility in Goulburn. 74 There are differing accounts of why Mr Old went to Clinton Villas. Coralie says that she, her children and Mr Old were forced off "Terramungula". To understand this, it is necessary to look at the history of the ownership of the property. It had been owned by Mr Old's father, Samuel, who divided it between Mr Old and his sister, Lorel Cretney, with each receiving distinct areas of land. The part on which the homestead stood passed to Lorel. Mr Old thus lived there at her sufferance. In April 2006, Lorel Cretney transferred her interest in "Terramungula" to her nephew, Timothy Meeth and his wife Leone. Coralie says that Timothy and Leone Meeth asked her, her children and her father to leave the homestead. 75 Robert says, in contrast, that the main factor behind his father's move to Clinton Villas was concern for his health and well-being. While Mr Old was in hospital, there were several discussions between Coralie, Robert, Janelle and the hospital staff about Mr Old's future care. It was apparent that his health was failing and that the living arrangements at "Terramungula" were inadequate because of his poor mobility, the risk of falls, his incontinence and his dementia. 76 I am satisfied that it was because of Mr Old's declining health and ability to look after himself that the decision was made that he should be accommodated at Clinton Villas. It may well be that Timothy and Leone Meeth were unwilling for an arrangement in favour of Mr Old to be changed by circumstances into one under which a concession made to an elderly uncle bacame a concession in favour of his daughter and her children. It is quite understandable that they should wish to bring the arrangement to an end once Mr Old was himself no longer able to live in the homestead. And the circumstances that existed when he was admitted to hospital on 28 April 2006 would have justified a view that that point either had been reached or was near. I am satisfied that Coralie accepted the move to Clinton Villas and did not express dissatisfaction or disagreement. 77 Robert arranged Mr Old's admission to Clinton Villas. Coralie took her father to his unit. The villas were self-contained and Robert arranged "meals on wheels", nursing personal care assistance and domestic support. The meals were discontinued after several months, as Mr Old did not like them. After that, Robert and Janelle provided all meals for Mr Old. Coralie leaves "Terramungula" 78 Coralie did not immediately leave "Terramungula" after Mr Old's departure in April 2006. She delayed leaving for as long as she could because she and her children had nowhere else to live. 79 In June 2006 Robert and Janelle arranged for Coralie to inspect some rental units in Goulburn. Robert offered to pay the bond for Coralie and to help with rent until she could arrange rental assistance. She inspected the units with Robert and Janelle. 80 After the inspection, the three of them went to the agent's office where there was a discussion about whether Coralie could have pets at the units. After receiving a negative response, she said, "I don't want to live in the city". Coralie at "Sunset" 81 Robert says that at this point, July 2006, Coralie asked him to tow Mrs Old's caravan to the "Sunset" property so that she and her family could live in it there. Coralie says that Robert did this without her having asked him to do so. It is not obvious that she had any viable alternatives at that point.
82 The "Sunset" property is remote. It has no town water, sewerage or electrical connections. There were discussions about Coralie building something there and having the services connected; but she could not afford this. 83 In early 2007 Mrs Old completed the sale of the Coromandel Street property and asked Robert, acting under power of attorney, to distribute to himself and to Coralie $40,000 each (in fact, $42,000 was paid to Coralie and $40,000 to Robert: see paragraph [7] above). Mrs Old was worried about Coralie's living conditions. Coralie used part of this money to buy a relocatable cabin and to have it installed at "Sunset". 84 The cabin remains only partially complete as Coralie cannot afford to finish it and because, in any event, council approval was not obtained for its erection. At the time of the hearing, Coralie and her daughter continued there. Her son had gone back to Perth to live in mid-2006. Mr Old's failing health and the sale of "Terramungula" 85 On 27 November 2006 Mr Old became seriously ill and was taken by ambulance to Goulburn Base Hospital and later to Crookwell District Hospital. Medical staff told Robert and Coralie that if he recovered he would need to move into a nursing home where he could receive full time care. 86 Robert and Janelle set about finding a suitable nursing home. But there were problems about being able to pay any deposit required. Robert decided that it was necessary to sell one of Mr Old's properties. Acting under power of attorney, Robert sold the part of the "Terramungula" land owned by Mr Old, that is, the part that did not include the homestead. The purchaser was Timothy Meeth. The price was $225,000. 87 In the end, however, the proceeds of this sale were not needed for a nursing home deposit. Mr Old died on 26 April 2007. Mrs Old died soon afterwards, on 6 July 2007.
Approach to Family Provision Act claims 88 Section 7 of the Family Provision Act 1982 provides that an "eligible person" may apply to the Court for an order of provision from the deceased's estate. No issue arises as to eligibility in this case in that the plaintiff, as daughter of each deceased, is clearly eligible under s 6(1)(b).
89 It was noted in Clemens v Byrnes [2007] NSWSC 421 that the powers of the court are discretionary and are expressed in the following terms:- "[I]f the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate … of the deceased person, as in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person.
90 The court's power is, however, constrained by s 9(2) which says that an order under s 7 may not be made unless the court is satisfied that: "the provision (if any) made in favour of the eligible person by the deceased person either during the person's lifetime or out of the person's estate … is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person." 91 Implicit in this is the principle, confirmed by the Court of Appeal in Nicholls v Hall [2007] NSWCA 356, that the test as to adequacy of maintenance is to be determined not at the date of death but at the date of the hearing.
92 In these proceedings, the plaintiff makes application in respect of two estates. The provision made for her by each will must be viewed in the light of the provision made for her by the other will - in that the two together, along with the plaintiff's other resources, will be the starting point for assessing what is adequate for her proper maintenance, education and advancement in life. 93 The correct approach to applications under the Property Relationships Act was stated by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. The matter was explained thus by Ward J in Scott v Scott [2009] NSWSC 567 at [117]:- "Under Singer v Berghouse (No 2) (1994) 181 CLR 201, there is a two stage test to be imposed - whether as a matter of fact the provision (if any) made for the applicant for his or her proper maintenance, education and advancement in life is inadequate; and, if so, whether in the exercise of the court's discretion, an order should be made for the proper level of maintenance and adequate provision of the applicant."
94 It will therefore be necessary to determine whether, as a question of fact, the provision made for the plaintiff during the parent's lifetime or under the parent's will is inadequate for her proper maintenance, education and advancement in life, having regard to her financial position, the size and nature of the estate, the relationship between her and the parent and the relationship between the parent and others who have a legitimate and competing claim. This assessment will have to be undertaken separately in relation to each parent, although, as I have indicated, the assessment involving the estate of one parent will pay attention to the assessment in respect of the estate of the other as the source, at least notionally, of some accretion to the plaintiff's financial position. 95 In Clemens v Byrnes (above) it was noted that in Kalmar v Kalmar [2006] NSWSC 437, White J considered, at [67], that the Act required the making of "an holistic value judgment based on matters of a very general kind". Similarly, it was recently said by Basten JA in Foley v Ellis [2008] NSWCA 288 at [3], that the courts determination "depends upon a multifaceted evaluative judgment".
96 If it is decided that the provision was inadequate then it will be necessary to decide whether, as a matter of discretion, orders should be made for the proper provision for the plaintiff. Determination of the proper level of maintenance appropriate in each specific case depends upon a number of matters as identified in Singer v Berghouse (above) at 201; Re Fulop (1987) 8 NSWLR 679; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 and Goodman v Windeyer (1980) 144 CLR 490.
97 The court may have regard to the totality of the relationship between the plaintiff and the deceased, the totality of the plaintiff's circumstances both before and after the death of the deceased, the size and nature of the deceased estate and whether there are other legitimate claims on the testator's estate. These issues are by no means exhaustive; each case will depend on its own particular facts.
98 In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, Dixon CJ, referring to earlier analogous legislation, said at 19:- "It has often been pointed out that very important words in the statute are "adequate provision for the proper maintenance and support" and that each of these words must be given its value. "Adequate" and "proper" in particular must be considered as words, which must always be relative. The "proper" maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is "adequate" must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words "proper maintenance and support", although they must be treated as elastic, cannot be pressed beyond their fair meaning. 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."
99 In Benney v Jones (1991) 23 NSWLR 559 at 560 Mahoney JA said: "Whether an order should be made raises (as it has been described) the moral or normative question … Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s 6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear."
100 It was noted by Gleeson CJ in Vigolo v Bostin & Ors [2005] HCA 11; (2005) 221 CLR 191 at [6] that the word "proper" conveys a value laden concept and must have a source external to the decision maker based on moral obligation arising from a familial relationship. His Honour said (at [12]): "The "testamentary duty" which justified legislative interference with a free exercise of testamentary capacity, that is, the duty of a man to make provision for his wife and children, was seen as a moral duty. The legislation was not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make proper provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship …" 101 When considering the provision to be made to the plaintiff it must also be borne in mind that "intervention should only be to the minimum extent necessary to make adequate provision for the proper maintenance, education and advancement in life of the applicant" (Permanent Trustee Co Ltd v Fraser (1996) 36 NSWLR 24; Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171 at [53]; Scott v Scott (above); Vigolo v Bastin (above); Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361). 102 To quote again from the judgment of Dixon CJ in Scales case (above) at 19: "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 deposited in the court". 103 In addition to the principle that there should be minimal interference with the freedom of testation, it must also be recognised that it would not be just to make a provision for the plaintiff, which would seriously jeopardise the defendant's situation in life. The court is required to balance any needs of the plaintiff with the provision made for the defendant: see Eather v Maher [2006] NSWSC 746. The relationship between Coralie and her parents 104 From the age of 13, when her parents separated, until she became an adult, Coralie lived solely with her mother, first in Goulburn while she attended school and started work, and later in Kiama where mother and daughter became partners in a business.
105 After Coralie left home and was travelling throughout Australia, Mrs Old was the only member of the family who was able to contact her, usually through a mailing address. Mrs Old and Coralie also kept in touch by telephone. When Coralie settled in Perth, the relationship was maintained through either Mrs Old visiting Perth on occasions or the plaintiff returning to Goulburn. 106 Coralie had a close and loving relationship with her mother. Robert did not suggest otherwise. 107 Coralie's relationship with her father was more difficult. During her early childhood, there is nothing to suggest that it was anything but a normal father-daughter relationship. The parents' separation when she was 13 meant that Coralie too was separated from Mr Old. Contact between them was infrequent and appears to have been limited to incidental meetings when Mr Old picked up Robert from the Goulburn house or brought him back; and occasions when Coralie happened upon her father in town or other parts of the district. 108 Coralie gave evidence that she did not visit her father at "Somerset" or "Terramungula" for many years after the separation. Indeed, it appears that she first returned to "Terramungula" in 1979 in connection with the funeral of her uncle. 109 The reason Coralie gave for the deterioration of the relationship and the restricted contact with her father was simply that she had been forbidden by her mother to see her father. Mrs Old gave reasons for this which need not be explored. Whether or not they were good reasons is largely irrelevant. The fact is that Coralie saw very little of her father after age 13 because that was the way her mother wanted it. 110 While Coralie was in Kiama the relationship with her father improved to some extent (see paragraph [35] above). Similarly, on her return to Goulburn in 1979 (by which time she was 23) Coralie made a number of visits to "Terramungula" to see Mr Old.
111 When Coralie again left Goulburn (as a result, she says, of fear of her husband), she cut ties with family and friends, although remaining in contact with her mother. In her fruit picking work, Coralie was constantly on the move. Mr Old was not informed of her whereabouts, nor did he have any means of contacting her.
112 After returning to Goulburn in 1989, Coralie moved to Perth in January 1991 and remained there until 2004. Again Mr Old was not informed of her whereabouts and had no contact details. Coralie gave evidence that she returned periodically to Goulburn and contacted her father during these visits. It seems clear that her visits were rare and the relationship remained very limited.
113 The implications, for this case, of the limited and strained nature of the relationship that Coralie had with Mr Old for a substantial part of her adult life is something about which competing submissions were made. Coralie's case is that there was no estrangement between them; alternatively that the difficult nature of the relationship should not be seen to be a disqualifying circumstance or as abrogating the obligation of the deceased as a parent.
114 Counsel for Robert submitted that the limited and poor relationship between father and daughter, compared with the relationship between father and son, absolved Mr Old from any duty to make substantial provision for Coralie. It was not suggested, however, that the conduct of the applicant amounted to "disentitling conduct" in the sense referred to by Jordan CJ in Re Gilbert (1946) 46 SR (NSW) 318 at 321.
115 The approach I am bound to take is that recently stated by the Court of Appeal (Beazley JA, Basten JA and Sackville AJA) in Foley v Ellis (above) at [95]:
"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".
116 Also apposite are observations of Young J in Walker v Walker (unreported, NSWSC, 17 May 1996): "I do not consider that there is any purpose in analysing whose fault it was that the state of non - communication came into place. In family relationships, hurts are often inflicted or suffered some times consciously, some times unconsciously. Sometimes a young child is brainwashed by a custodial parent to consider that the other parent has inflicted some harm, which is all in the mind of the custodial parent. It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault 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 in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant…"
117 This statement was recently approved by Ipp JA, with some qualification, in Palmer v Dolman; Dolman v Palmer (above) at [112]: "I agree with his Honour's remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of "eligible person" in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds."
118 Regard should also be had to what was said by Holland J in Kleinig v Neal (No 2) [1982] 2 NSWLR 532 at 540: "If it is a case of parent and child, another circumstance is the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so 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."
119 The effect of the authorities is that the mere fact of estrangement between parent and child, viewed alone, should not ordinarily result in the child not being able to satisfy the jurisdictional requirement under the Property Relationships Act. 120 The fact that for most of her life Coralie had a limited and strained relationship with her father is a relevant consideration. But there needs to be a full investigation into all the facts and circumstances of the relationship.
121 In undertaking this investigation, the court is not concerned with apportioning blame for the absence of a close or fulfilling relationship. Indeed, in this case the reasons for the state of the relationship are not entirely or directly attributable to any one person. The relative estrangement was really a product of the breakdown of the parents' marriage and, at a later stage, Coralie's fear of her former husband.
122 Things changed, of course, in December 2004 when Coralie went to live at "Terramungula" and became Mr Old's carer. Coralie says that the relationship improved to such an extent that Mr Old said words to the effect: "I want you to have this place … I want you to have the place where we live." 123 But, of course, Mr Old did not then own the homestead block; and I discount Coralie's suggestion in cross examination that he was referring to another part of the property. There is also the point that, in earlier wills, Mr Old gave his portion of "Terramungula" either to Robert or to Robert's children.
124 It was submitted on behalf of Robert that Coralie only went to live with Mr Old at "Terramungula" because she had nowhere else to go and that she did not look after him very well in any event; also that there was no genuine attempt to re-connect with him. In Worsley v Solomon [2008] NSWSC 444, however, McLaughlin AsJ noted at [38] that an order for provisions is not a reward for services and good conduct, nor is it a punishment for perceived bad conduct. The paramount considerations are the needs of the plaintiff and the moral obligation of the testator to provide for those needs. Criticisms of the adequacy of care provided to Mr Old and the idea that Coralie cared for him because, having nowhere else to live, she had no practical alternative are not relevant in determining the adequacy of the provision made by Mr Old, nor is it relevant to whether an additional provision should be made.
125 The relationship between Mr Old and Coralie was never completely abandoned by either side. Although there was, for a long period, a remoteness, a form of mutual relationship continued from Coralie's birth to Mr Old's death and was strengthened towards the end when Coralie was his primary carer. Coralie had lived a difficult life, as Mr Old well knew. It was plainly to be expected that he would make provision for her in his will.
Robert's relationship with his mother 126 Robert, like Coralie, had a close and loving relationship with his mother. For a period after the parents' separation and until he left school, Robert lived with his mother and Coralie at Coromandel Street during the week and joined his father at "Somerset" at weekends. He went to live at "Somerset" when he finished his schooling.
127 While Mrs Old and Coralie were living in Kiama, Robert visited them periodically. When Mrs Old went back to Goulburn to live, it was Robert and his wife who provided the support and assistance she needed. In her later years, Mrs Old made Robert her attorney so that he could attend to her affairs. He in due course arranged her nursing home accommodation. 128 Robert was, towards his mother, a loving and dutiful son. His wife Janelle supported him in this and was a caring and dutiful daughter-in law.
Robert's relationship with his father 129 Robert was close to his father during his childhood and beyond. Mr Old encouraged Robert's interest in pastoral pursuits and groomed him to follow in the family tradition of farming and grazing. While living with his mother and Coralie in Goulburn after the separation and until he left school, Robert spent the weekends with his father at "Somerset". He went to live and work with his father there after leaving school. He remained with his father until his marriage in 1984.
130 Robert contributed to the conservation and improvement of Mr Old's properties and the conduct of his business over the years. He was not paid wages while working for his father nor did he take drawings from the partnership. He was compensated for his services in other ways. Robert, and later his family, occupied "Somerset" rent-free. After the partnership was dissolved, Robert was allowed to operate his own farming business on the "Somerset" property. Mr Old paid certain of Robert's expenses and made financial contributions to certain acquisitions by him (see, for example, paragraphs [57] - [58] above). Mr Old also created and encouraged an expectation in Robert that he would inherit the "Somerset" property. 131 In Mr Old's old age, it was Robert, acting under a power of attorney, who took care of his financial affairs. He was also appointed Mr Old's enduring guardian. It was Robert, assisted by Janelle, who organised his father's accommodation and care after he left "Terramungula". He also took steps to obtain funds in anticipation of the need to pay a substantial deposit for nursing home accommodation. 132 Robert submits that there existed between father and son a very close bond, developed during his formative years and strengthened by their subsequent shared commitment to the land. 133 Coralie, by contrast, maintains that the relationship between Robert and Mr Old had deteriorated over a number of years and in particular after Robert's marriage to Janelle. She suggested that Robert had withdrawn from the relationship and instead focused his time and efforts on his wife and children. 134 There can be no doubt that Robert's marriage and the subsequent birth of his children altered the dynamics of the relationship between father and son. It would be odd if this were not so. It was to be expected that the frequency of contact between them would reduce. It is nevertheless clear that Mr Old remained close to his son and his son's family. Mr Old often celebrated Christmas with them. When they did not spend Christmas together, presents were exchanged. 135 The deterioration in the relationship between Robert and Mr Old alleged by Coralie centred on a number of specific events to which some attention should be given. 136 Mr Old went to Sydney for surgery in 1988. He asked Robert to feed and water his dogs while he was away. At that point, Mr Old kept over 100 dogs at "Terramungula" and was engaged in dog breeding. Coralyn Whiting gave evidence that, when she brought Mr Old back to the property, she found a number of dog carcasses. Robert killed the dogs. He said that they were in such appalling condition and emaciated to such an extent that it was cruel to keep them alive.
137 Coralyn Whiting also gave evidence that she observed Mr Old being upset with Robert because, in his absence and without his permission, his joint bank account with Robert had been closed and money in it had been transferred to Robert; also that Mr Old complained that his one-tonne truck had gone missing and that his maroon Holden utility, which he called his "good ute", had been transferred into Robert's name and Robert's personalised number plates had been attached to it. 138 Robert gave perfectly rational explanations for both these matters. He and Mr Old had agreed to dissolve their partnership and pursue their own separate business interests. At the time of dissolution, the joint bank account was overdrawn and Robert, in order to close the account, had to deposit moneys into the account. As to the one-tonne truck and the "good ute", Robert had thought that his father would be unable to drive after the surgery and therefore decided to sell the one-tonne truck to his brother-in-law. When it turned out that Mr Old could indeed still drive, the transaction with the brother-in-law was reversed and Mr Old used it for a number of years. The evidence (including a photograph affectionately inscribed by Mr Old) shows that the "good ute" was given by Mr Old to Robert on the occasion of his 30th birthday. He put his personalised plates on it. 139 Coralyn Whiting also gave evidence about periodic visits by her mother (Mr Old's sister) and herself to "Terramungula" in the period 1990 to 2000. Each visit was of the order of one week. While they were there, they cooked for Mr Old, attended to housework and generally helped Mr Old. Miss Whiting gave evidence that she rarely, if at all, saw Robert helping his father and that Mr Old believed that he was unable to ask Robert for any assistance in taking him to medical appointments. I draw no particular inference from the fact that during a particular and isolated week when Miss Whiting and her mother were at "Terramungula", Robert did not visit.
140 Miss Whiting also referred in her evidence to what she perceived to be upsetting phone calls received by Mr Old from Robert. The circumstances of these phone calls are far from clear. The fact that father and son with pastoral interests in common sometimes had heated conversations (if indeed they did) is of no great moment in the context with which I am concerned.
141 Robert had a close relationship with his father. He was a devoted and dutiful son. His father was proud of him and of the fact that he was carrying on the family tradition on the land in the Goulburn district. They no doubt had disagreements but the relationship was strong and sound.
142 Coralie is 53 years of age, divorced and has two children. Her son is almost 20 and lives in Perth. Coralie and her dependent daughter, aged 13, live in a relocatable cabin on "Sunset", a 20 acre property without running water, sewerage and electricity and some 45 kilometres by road from Goulburn, the closest town of any size. 143 Coralie used about $25,000 out of the $42,000 given to her by Mrs Old (see paragraph [83] above) to buy and erect the cabin (something that was done without council approval). 144 The caravan that Coralie initially took to "Sunset" is still there. It appears to be in a state of disrepair and is used as a kitchen. The cabin is very small, and structurally incomplete. There are minimal furnishings. Coralie and her daughter sleep on mattresses on the floor. There are no shower or toilet facilities. Coralie and her daughter rely on the hospitality of friends in Goulburn for access to shower facilities. Drinking water at "Sunset" has to be bought and brought in. 145 These living conditions are obviously inadequate for Coralie and her daughter who has a number of health problems. 146 Coralie had a variety of jobs throughout her working life, generally of a short-term nature. She has not however worked full-time since her son was born in 1989. She has no formal training for any vocation nor does she have any clerical or computer skills suitable for office employment. 147 Coralie is currently undertaking a Diploma of Conservation and Land Management at Goulburn TAFE. Given her age and what she says are continuing effects of the injury she suffered as a young woman, it is doubtful that she will obtain secure employment in the future.
148 I turn now to consider Coralie's financial resources - a task not made easier by the erratic way in which financial details have been placed before the court. The disclosure was initially inaccurate and incomplete but a clearer picture emerged as the case went on. 149 According to her version, Coralie receives a weekly income of $478.60 from child support and social security payments. On the version put before the court by Robert, the payments total $502.89 per week. I do not need to resolve this dispute. The amount of the payments is likely to fluctuate over time and, of course, the child support payments will come to end when the daughter becomes an adult. It is enough to say that, because she is unemployed, Coralie relies solely on social security and child support payments to support herself and her daughter. This is unlikely to change in the future. 150 Coralie initially said that she had assets of $5,241 and liabilities totalling $3,800 as at 25 September 2009. There is however an inaccuracy in this. The value of the relocatable cabin has been omitted. It cost $25,000 to buy and install. One can surmise that someone buying it now would pay appreciably less than that, given the need to collect, remove and re-install. Nothing is included in Coralie's calculations for the caravan and the items of Mrs Old's furniture held in the storage unit. Since these were owned by Mrs Old and remain assets of her estate, they are correctly omitted from an assessment of property owned direct by Coralie. 151 It is necessary to refer briefly to benefits that Coralie received from her mother and her father during their respective lives. I concentrate, however, on the later stages. Coralie received $42,000 from her mother in 2007. She also received financial help from her mother while living in Western Australia. 152 As far as Mr Old is concerned, there is evidence of only minimal contributions. When Coralie was caring for Mr Old towards the end of his life, she did not pay rent and Mr Old gave her some money to cover expenses such as medicine and food. Robert's situation in life 153 Robert is 51 years of age, married and has three children. Two of his children are adults. The third child is aged 13. Robert lives with his wife and two daughters in Goulburn. His son lives at the "Somerset" property. 154 Robert has spent most of his life running family businesses, improving the properties, running sheep and cattle, clearing, fencing and ensuring the properties had sufficient access to water. This is hard and continuous work. 155 In the 2007/2008 financial year Robert's business incurred a loss of $2,036. He was reliant on drought assistance benefits to produce a net income of $14,467. His wife is unemployed and receives social security payments amounting to approximately $7,102 per annum. The combined income of Robert and his wife was $21,569 per annum. 156 In relation to assets, Robert estimates that he has farm plant, equipment and stock valued at approximately $32,500. The family home in Goulburn has a value of about $310,000 to $340,000 by the plaintiff's 'drive-by' assessment. Robert has savings in the bank of $500. 157 In assessing Robert's financial circumstances, it is also necessary to look at provision or gifts made during the lives of his parents. 158 As outlined at paragraph [86] above, Robert received a gift of $40,000 from Mrs Old from the proceeds of sale of her house. He was able, with his mother's acquiescence, to use rent money from her house for his own purposes. In addition, Mrs Old transferred her interest in "Lucys and Wheeldons" to Robert, albeit for a price. 159 Mr Old made significant contributions to Robert's financial security during his lifetime. As outlined at paragraphs [57] - [58] above, he provided assistance in purchasing the house in Goulburn. He also gave the "good ute" to Robert and let him and his family live rent-free at "Somerset" before they moved into town. Robert and, in later years, his son were able to operate businesses on properties owned by Mr Old without paying rent or any other consideration. Mr Old also paid a number of incidental expenses for Robert over the years, such as feed for his animals or car registrations. 160 But Robert, for his part, undertook a significant burden for minimal financial reward. He was not paid a wage for working for his father on the properties, nor did he take significant drawings from the partnership between them. 161 There can be no doubt that Robert had a strong claim on his father's testamentary bounty. His father recognised this by making for him provision considerably greater than that made for Coralie. Apposite to Robert's situation are observations made by Master Macready in Fellows v Paterson [2002] NSWSC 190 at [48]-[49]: "There is, of course, no reason why the defendant should not be able to continue his life choice of living on the land with his family. Indeed, the contribution he has made to the estate and its properties make it imperative that any order not interefere with the continued operation of his properties. The situation of the defendant is, however, such that some further legacy can be accommodated without causing any great difficulty".
162 As noted at paragraph [92] above, where, as here, the plaintiff makes claims upon two estates, the adequacy of provision made in each case must be determined independently, albeit with reference to the provision made by the other testator. Coralie has demonstrated that, considering her situation in life, there is a clear need for the allocation of resources for her housing and accommodation. Her current living conditions are inappropriate for her and her daughter. 163 In relation to the estate of Mrs Old, I do not accept, given all the relevant circumstances, that the provision (under which Coralie shares the estate equally with Robert) is, from Coralie's perspective, inadequate. Both Coralie and Robert have strong moral claims on their mother's testamentary bounty. Equal division reflects the deceased's even-handed commitment to her children. 164 In the case of Mrs Old's estate, the provision made for Coralie for her proper maintenance and advancement in life is adequate. 165 In relation to the estate of Mr Old, there is unequal treatment of the children. It is not surprising that the provision made for Robert was of a different character to that made for Coralie, as he played a major role in his father's life and was at various times, in addition to being a son, an employee, a co-worker, a business partner and a companion. 166 Despite this strong father-son relationship, however, there remained a duty on Mr Old's part to provide for his daughter. Although the relationship between father and daughter was limited, Mr Old had a duty to make adequate provision for Coralie given her life situation and the circumstances in which she found herself. She is dependent on social security for her income, has a dependent child, has minimal savings and assets and is unlikely to gain future employment. These factors are relevant to the assessment that a testator in Mr Old's position should have taken into account. 167 Even taking into account the benefit that Coralie will receive from her mother's estate, Coralie will not be able to alter her current living conditions in any appreciable way. Those conditions are substandard. The provision made by Mr Old for Coralie for her proper maintenance and advancement in life is not adequate. Findings in relation to further provision 168 The findings made under the first limb of Singer v Berghouse (above) make it necessary to move to the second limb in the case of Mr Old's estate, but not in the case of Mrs Old's estate. That raises the question of what will appropriately be done to secure to Coralie a proper level of provision out of the estate of Mr Old. 169 Coralie says that she needs enough to complete the construction of the relocatable cabin on "Sunset" and to attend to related matters as follows (with particular quotes for particular work mentioned): Country Energy for electricity connection $74,000.00 Zol's Plumbing for plumbing work $23,650.00 Modern Aspect (T Christopher) - laying tiles $2890.00 Walker Tiles, supply of tiles $377.00 Knebel Kitchens $17,000.00 Harvey Norman, supply of whitegoods $6,625.00 Harvey Norman, supply of latex mattresses $3,3748.00 Cedarspan, extension for existing cabin $29,713.00 Cedarspan, garage/laundry $22,137.50 Hanson Construction materials, slab for garage $2,040.00 Harvey Norman, supply & fit flooring (3 rooms) $12,798.00 Goulburn Auto Group, supply of Rav 4 $35,000.00 Title to "Sunset" $5,000.00 A sum for such things as concrete pathways around the cabin and gravelling of road $25,000.00 A sum of money for the repayment of debts and the vicissitudes of life $50,000.00 TOTAL $309,978.50
170 This is really Coralie's "wish list" to enable her to live at "Sunset" the life she would like to lead on the remote property left to her by her father. Her need, however, is something different. The need is for a roof over her head and that of her daughter by way of functional and economical housing and a sum for contingencies.
171 The intervention of the court in cases such as this should be to the minimum extent necessary. In addition, the strength of Robert's claims and expectations is something that affects the decision about the order that should be made in favour of Coralie in the exercise of the court's discretion. Robert's situation and the extent of the estate are, however, such that some further provision for Coralie can and should be accommodated. 172 Evidence was received of the asking prices for numerous houses in Goulburn and nearby towns. These were between $150,000 and $300,000. The descriptions of the houses suggest that any would be suitable, in general terms, for a single woman and her teenage child. Coralie was cross-examined about the suitability of several of the houses. She found fault of one kind or another with many, but her assessments were highly subjective and to some extent petty. She was unable to provide any real explanation as to why these properties, or some of them, were not suitable for her, except to say that her preference was to have a choice as to whether to stay at "Sunset".
173 It is also noteworthy that, as mentioned at paragraph [72] above, Coralie herself had asked that she be given her inheritance early, by way of proceeds of a sale of "Sunset" so that she could buy a house in Goulburn or the surrounding area. 174 Coralie's "wish list", as I have called it, is unrealistic and seeks demonstrably more than she needs. As things now stand, Coralie has available to her, in money terms, say $130,000 from a sale of the vacant "Sunset" land (the value of $140,000 mentioned at paragraph [17] above, less an allowance of an estimated $10,000 for selling expenses), perhaps $15,000 from a sale of the relocatable cabin bought for $25,000 and about $49,000 from Mrs Old's estate after the impact of the costs of these proceedings (see paragraphs [8] and [9] above) - a total of about $194,000. A house in or near Goulburn could, on the evidence, be acquired for $230,000, to which might be added, say, $10,000 for stamp duty and incidental costs - a total of $240,000. 175 On this basis, Coralie will be appropriately provided for by a legacy of $95,000 (that is, $85,000 more than the legacy for which Mr Old's will provides). That, with resources otherwise available to her, will give her about $289,000 which will cover the assumed house cost of $240,000 and leave an allowance of $49,000 for the vicissitudes of life (slightly less than the $50,000 included in the wish list). 176 It is, of course, for Coralie to decide how she will apply the legacy. She may, if she wishes, sink it into what appears to be the uneconomical and somewhat self-indulgent venture at the remote "Sunset" location. Alternatively, she may take account of the fact that the court has assessed her needs on a basis that involves her moving to an established dwelling in a town, with water, sewerage and electricity connections, where she and her daughter can be spared the hardship of remote living and the inconvenience of long travel. Disposition 177 The orders of the court are:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Frizelle
Old
[1994] HCA 40
(1991) 23 NSWLR 559
(1980) 144 CLR 490
(1996) 36 NSWLR 24
(1962) 107 CLR 9
(1987) 8 NSWLR 679
(1994) 181 CLR 201
(2005) 221 CLR 191