Gollege v Donnachie

Supreme Court of NSW|2004-11-17|Before: Mr J

CITATION : Gollege v Donnachie [2005] NSWSC 16

CATCHWORDS : Family provision and maintenance - claim by a de facto partner - dispute as to whether plaintiff was a de facto partner - appropriate provision was a life interest with particular attributes to prevent dissipation.

William Gordon Gollege v Patricia Donnachie & Anor (Estate of Mary Anne Bell) PARTIES :

The Legal Aid Commission of NSW for plaintiff SOLICITORS : Beazley Singleton for defendants

1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4867/02 William Gordon Golledge v Patricia Donnachie and Elizabeth Borg JUDGMENT 1 Master : This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ann Bell who died on 2 April 2001. The plaintiff was at one stage the de facto partner of the deceased. The defendants are two of the children of the deceased by her marriage. Last will of the deceased 2 On 19 April 1984 the deceased made her last will and testament. In that will clause 2 was as follows: "I give my house No. 48 Macauley Street Leichhardt and the furniture and furnishings therein unto my trustees upon trust to permit my friend WILLIAM GORDON GOLLEDGE (provided he shall be living with me as at the date of my death upon a bona fide domestic basis ) and my son David Anthony Bell (hereinafter called the permitted occupants) and no other person to enjoy the personal use and occupation of the said house furniture and furnishings during their respective lives while they shall respectively remain unmarried and so long as they respectively shall not enter into any de facto relationship in either of which events he or they shall forthwith vacate the house and I DIRECT my trustees to take any necessary steps to ensure that they do so." 3 Thereafter the will provided in clause 4 for the home to be sold and to be divided equally between the four children of the deceased. 4 On 30 January 1996 the deceased executed a codicil amending clause 2 by deleting the reference to 48 Macauley Street, Leichhardt and inserting the premises known as 14 Warman Street, Pendle Hill. Apart from this amendment there were no other changes to the will. The assets in the estate 5 The deceased owned the property at 14 Pendle Hill that has a present value of $417,000 and she had cash of about $5,756. The cash has been used to pay some of the administration expenses of $20,801 with the executors paying the balance. They still hold the house which is occupied by the defendant and the executors have met all the rates and taxes on the house since the date of death. 6 The plaintiff's costs up to and including the hearing amount to $26,370 and the defendants' amount to $26,259.50. Family history 7 The plaintiff was born on 7 January 1937 and the deceased was born on 14 January 1928. He first met the deceased in 1964 when she was married to her husband Sidney Bell. There were four children of that marriage. They were the first defendant born in 1945, the second defendant born in 1952, Frederick born in 1955 and David born in 1966. 8 In January 1977 Sydney Bell died and shortly thereafter (according to the plaintiff) he moved in to live with the deceased. The defendants suggest that he moved in about 18 months after Mr Bell's death. The plaintiff sold his home at Leichhardt in 1979 and after paying off the mortgage he received the sum of $20,000. 9 The plaintiff's son moved into the house in 1978 and remained there until 1981 when he moved out. He was then aged 17 and he kept in touch with the plaintiff thereafter. 10 The deceased made her will as I have recounted on 19 April 1984. At that stage David was still at home and he moved out in 1988. 11 In 1988 the plaintiff's father moved into the home where the deceased cared for him. He remained there for two years until he had to move to a nursing home. He died in 1990. 12 In October 1990 after the sale of his father's home the plaintiff received $7,261 and $70,000 by way of distribution from the estate. The plaintiff says that he gave sums of $25,000 and $7,000 to the deceased but that is disputed. 13 The plaintiff had been a clerk in the Department of Public Works and he retired in July 1992. He received redundancy and long service sums of $10,861 and $6,385. He also received a payout of his superannuation in an amount of $119,983. 14 There are allegations that the plaintiff drank very heavily after his retirement and it appears that he received a disability pension in 1993. 15 On 30 January 1996 the deceased made the codicil to her will. In 1997 the plaintiff suffered a turn at home and was taken to hospital. After that occasion the plaintiff says that his drinking habits changed and he ceased drinking a bottle of scotch a day and drank beer instead. The evidence suggests that it might have been two bottles a day rather than one bottle. 16 The deceased died on 2 April 2001 and probate was granted on 27 June 2001. The proceedings were commenced on 30 September 2002 within the time limited under the Act. Eligibility of the plaintiff 17 The plaintiff claims to have been living with the deceased as her de facto partner at the date of death or, alternatively, that he was at some time a member of the household of which the deceased was a member and at some time partly dependant upon the deceased. 18 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a domestic relationship in the Property (Relationships) Act 1984.

19 That Act applies to domestic relationships which are defined in s 5 as follows:- "5. Domestic relationships (1) For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following: (a) a child born as a result of sexual relations between the parties, (b) a child adopted by both parties, (c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: (i) of whom the man is the father, or (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted, (d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998). (4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

20 It can be seen from the terms of s 5 (1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

21 The definition of de facto relationship itself appears in s 4 and is in the following terms:- 4. De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)--(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

22 Apart from the provisions of sub-clause (1) this definition merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.

23 The plaintiff did not claim that he was in a close personal relationship with the deceased at the date of death but for completeness I should mention the matter. Apart from the exclusionary matters in s 5(2) there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are " living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead, the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care".

24 The second requirement is cumulative. There must be both domestic support and personal care.

25 It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:- (a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own. (b) Of or pertaining to one's person body or figure; bodily." 26 The reason why no claim was made by the plaintiff in this regard is that he gave no evidence of having provided personal care to the deceased. 27 There does not seem to be any dispute that the deceased and the plaintiff were living in a de facto relationship while they were living at Macauley Street, Leichhardt until the move in 1991. In respect of the period after 1991 I will consider the matter by reference to the headings to which I have referred.

The duration of the relationship 28 The relationship overall was a long one having commenced either in 1977 or 1978 and it continued until the death of the deceased in April 2001. The nature and extent of the common residence 29 The plaintiff and the deceased lived together and shared a bedroom for the period they were living together at Leichhardt. It seems clear that after the move from Pendle Hill the plaintiff and the deceased had separate bedrooms. Precisely when this occurred was a matter of some debate in the evidence but the plaintiff himself conceded that this occurred at least as early as 1996 and may have been in 1994 or 1995. In 1996, prior to the plaintiff having his bad turn as a result of his drinking which put him in hospital, the deceased herself had gone to consult a solicitor about what claims the plaintiff might have upon her estate in the event of her death. A long letter of advice was given to the deceased on 31 January 1996 by Mr David Austin, solicitor. In that letter Mr Austin repeated his instructions given by the deceased in these terms: "Mr Golledge has turned into a problem drinker. He was laid off from work two years ago with a payout of some $150, 000.00. He has only $30,000.00 left having put the rest through the poker machines and spent the money at the RSL. He has nerve damage through alcohol abuse resulting in his bleeding from the skin at night. He knows that he is an alcoholic. He is often drunk by 9.00am. He does not contribute a cent to the house nor has he ever done so. You sleep in separate rooms. There is no physical relationship. You have asked him to leave many times but he refuses to. His son is sympathetic to you but does not know how to control his father's behaviour. You also state that your own health is now suffering and you have decided that you want him out of your life." 30 Other evidence supported the claims made by the deceased to Mr Austin. For example there was evidence of her having spoken to the son of the plaintiff asking him to do something about his father such as make him have treatment. The plaintiff's son agreed with this evidence and clearly it was an extremely trying time for the deceased from the early nineteen nineties. No doubt the problem seems to have been exacerbated by the plaintiff's retirement in 1992 and the availability to him of large sums of money from his payout. 31 Notwithstanding these difficulties, the fact of the matter is that the parties continued to reside together in the same house, sharing the same household, with the deceased preparing meals for the plaintiff until shortly before her death. Whether or not a sexual relationship existed 32 The plaintiff contended that a sexual relationship continued up until 1998 on the odd occasions when the deceased would visit him early in the morning. There is no other evidence on the matter other than the instructions given to the solicitor which suggested that there was no physical relationship in 1996. It would seem to me that any sexual relationship had ceased by 1998. The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties 33 In the time at Pendle Hill, as I observe below, there was little contribution by the plaintiff to the running of the household and the parties had separate bank accounts. The ownership, use and acquisition of property 34 The Leichhardt and Pendle Hill properties were purchased with funds provided by the deceased. On the sale of the Leichhardt property the deceased received a surplus on the sale and purchase arrangements of about $32,000. There was no contribution to the acquisition of either of these properties by the plaintiff. In respect of the Leichhardt property there were contributions made by the plaintiff when he renovated the kitchen and bought some furniture for the property. Precise details of the amounts spent are not clear but the funds would have come from the proceeds of sale of his own property which realised him about $20,000. The amount actually spent by the plaintiff on the house out of this sum would be somewhat less as he conceded that he spent a lot of that money on drinking and gambling. The degree of mutual commitment to a shared life 35 There was evidence from a number of persons who observed the plaintiff and the deceased as a couple and their visits to the local club. This shows some commitment to a life together as do various cards and expressions of sympathy, which are in evidence. The plaintiff gave evidence that he contributed amounts totalling some $32,000 to the deceased and another $3,000 to her daughter for the purpose of a trip, which they took to Malta. The plaintiff could adduce no proof of this. However, there are reports of conversations during which the deceased acknowledged a sum of this magnitude had been paid for by the plaintiff. Apparently the $3,000 lent to the deceased's daughter was a sum for contingencies on the trip and was returned to the deceased by the deceased's daughter. I accept the plaintiff's evidence on this aspect and such payments do show some sharing of resources. However, there were many other assets, which the plaintiff received particularly from his father's estate and on his retirement, and I have detailed these in the chronology earlier in this judgment. I am satisfied that, apart from the matters I have already identified, this money was retained by the plaintiff and used for his own purposes. These purposes included gambling on the dogs and for many years he owned various racing dogs. He also used a substantial amount on alcohol. There was adduced in evidence receipts from betting in the period of a few years after 1994 which totalled some $27,000 and this indicates the magnitude of his expenditure on these matters. 36 There is evidence in the doctor's reports of the plaintiff's alcohol abuse and it is plain that in the early 1990s his drinking had become impossible for the plaintiff. This situation continued up until possibly either late 1996 or early 1997 when the plaintiff had a serious incident at home and had to be hospitalised. Up until this time he had been drinking one or more bottles of whiskey a day. In considering the son's evidence, which I accept, it is plain that the drinking was reduced after this event by substituting beer for whiskey. 37 There was also evidence from the first defendant who conceded that the plaintiff's drinking was substantially less during these later years. She noticed that her mother was not cooking for the plaintiff any longer and that they were doing their own cooking and they were not yelling or screaming at each other. As the plaintiff was sober, they seemed to have normal conversations but seemed to have separate interests. The care and support of children 38 I have earlier recounted that the earlier part of the relationship was an admitted de facto relationship and that they cared for each other's children. There was also a care, which the deceased extended to the plaintiff's father over some years before he had to go into hospital. The performance of household duties 39 In the early stages the deceased did the cooking for the family and was renowned for her cooking skills. This seems to have tailed off with her and the plaintiff cooking seperately towards the end of the relationship. It is clear that they both performed some household duties. The plaintiff's duties were somewhat restricted by his problems but he did do some gardening. It seems that the only contributions that the plaintiff might have made in the later years to household was to put $50 or $100 on the table if the deceased complained about not getting any money from him to meet household expenses. Apart from these small amounts it was the deceased who met all the expenses. The reputation and public aspects of the relationship 40 As I have mentioned earlier, there are a number of affidavits from friends who observed the plaintiff and the deceased at the club socialising as a couple and this is the main evidence on this aspect. 41 We are dealing here with a situation where there was a clear de facto relationship for many years until the move to Pendle Hill. Thereafter the relationship deteriorated to the extent that in 1996 the deceased sought advice in order to perhaps consider ending the relationship. The fact of the matter is that the deceased did not end the relationship and they continued to live together. The quality of their life together picked up after 1997 but some of the aspects of the relationship were not present. For example they lived in separate areas of the house and they did not have a sexual relationship but that is not unusual. Indeed, the problems the plaintiff had with his legs probably meant that it was necessary for him to sleep in a separate room. 42 In the 1990s the relationship was an unhappy one. The deceased was considering whether or not to end the relationship by having the plaintiff's son admit him to hospital or the deceased herself ending the relationship. Out of concern for the plaintiff, the deceased did not do this because she did not want to see him out in the street. In the circumstances, notwithstanding that they might have been cooking for themselves towards the end of the relationship, I think that the relationship ended at the date of death. Accordingly, I am satisfied that the plaintiff is an eligible person as a de facto partner of the deceased at the date of death. 43 In these circumstances it is not necessary to consider whether the plaintiff is an eligible person as a member of the household.

44 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." The plaintiff's situation in life 45 The plaintiff is 67 years of age; he is single with no dependents. He has no assets other than a few personal effects and he lives on an aged pension in the order of $427.80 per fortnight. 46 I have already dealt with the relationship between the plaintiff and the deceased and have recorded that it was an unhappy one during the last ten years. This was brought about by the plaintiff's alcohol abuse and gambling. 47 Although I have found the plaintiff contributed some $32,000 to the expenses of the deceased and her daughter for their trip overseas, there was no contribution to the assets in the estate by the plaintiff apart from the renovations at Leichhardt. Notwithstanding that in the last ten years the plaintiff received substantial payments, he did not expend these for the benefit of the relationship and only made minimal contributions towards the upkeep of the home. 48 It is also necessary to consider the situation in life of others who might have a claim on the bounty of the deceased. The situation in life of the first defendant Patricia Donnachie 49 Patricia Donnachie is aged 59 years. She is married, although she is estranged from her husband. She has two children who are not dependent upon her. She and her estranged husband own a property at Greystanes which has a value of $460,000. Her husband resides in the property rent free and pays all the outgoings while she rents a unit at Parramatta for $590 per month. Patricia Donnachie has cash and shares of about $10,000; superannuation of $3,000 and a car worth $35,000 on which there is $5,600 owing by way of finance. She is self employed as a sales representative in the upholstery business and her taxable income for the year ended 2002 was some $7,150. 50 Patricia had a good relationship with the deceased and whom she supported as a good daughter. She did not contribute to the assets in the estate. The situation in life of the second defendant Elizabeth Borg 51 Elizabeth Borg was born on 22 March 1952 and she is aged 52 years. She is married and her husband is aged 53 years. Elizabeth Borg placed no evidence before the Court as to her financial situation or her relationship with the deceased. Accordingly, the Court can assume that she does not wish these matters to be taken into account when considering the plaintiff's claim. The situation in life of David Anthony Bell 52 David Bell is the son of the deceased. He was born on 17 March 1966 and he is aged 38. He is married and has three children aged from two to fourteen years of age. He also placed no information before the Court as to his financial situation or his relationship with the deceased. The situation in life of Fred James Bell 53 Fred Bell is the son of the deceased. He was born on 26 December 1950 and he is aged 53. He is married and has two adult children. He also placed no information before the Court as to his financial situation or his relationship with the deceased. Consideration of the plaintiff's claim 54 The plaintiff's claim for provision is expressed in a number of ways. The first submission was that he should receive the outright ownership of the deceased's former home. Second, that he should receive the net distributable estate after the deceased's former house was sold. Third, some other accommodation together with a capital sum to be achieved, for example, by a life estate in the nature of a Crisp order. 55 It is clear in this case that the plaintiff is not able to afford to meet the rates and taxes on the house at Pendle Hill and he has difficulty maintaining the property due to difficulty with his hips. 56 In her initial affidavit filed earlier in the proceedings, the first defendant, Patricia Donnachie, undertook to continue to pay Council and water rates and insurance if the will was upheld and she would not require the property to be sold to pay or reimburse the executors for their legal fees. She and her sister and brothers have paid the rates and taxes since the date of death of the deceased. The two defendants expanded upon this undertaking in evidence given by Patricia Donnachie when the matter was before me for hearing. Apparently, her brothers and sister will help her carry out this undertaking and, in order to meet the legal fees, it is proposed that a mortgage will be taken out on the premises and repaid over a five to ten year period. She also undertook and in fact had put in hand arrangements for the maintenance of the garden and lawns of the premises. 57 The question of what is the appropriate provision and whether a life estate should be awarded to persons in the situation of either a widow or a longstanding de facto partner has been dealt with in a number of cases. 58 In the 1970s and 1980s there are a number of decisions of single Judges of this Court where they have held that a life interest with particular attributes were appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd , Holland J 18 December 1979; Banks v Hourigan , Waddell CJ in Eq, 2 March 1989; Cameron v Hills , Needham J, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 Mason J said:- "A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could [445] benefit her relatives from the proceeds of the legacy.' As has been pointed out in Elliott v Elliott that statement was made in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased." 59 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J who was one of the majority in White v Barron at pp 438-440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application. By the late 1980s other Judges in this Division were taking a slightly different view. For instance, in Court v Hunt 14 September 1987, unreported, Young J said at page 2: "Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge." 60 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. 61 After talking about the evidence necessary, his Honour went on to say on page 3: "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non- capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow." 62 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky, 5 October 1993, unreported, Kirby P at page 16 summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:- "In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576. (b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70.

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA. (e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant ; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop (deceased) (1987) 8 NSWLR 679 (SC); Churton v Christian & Ors (1988) 13 NSWLR 241 (CA), 252." 63 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum (1985) 2 NSWLR 65 and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott , unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. 64 In Permanent Trustee v Fraser (1995) 36 NSWLR 24 at p 47, Sheller JA had the following to say:- "Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life estate in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie (3 December 1986, unreported) at 4. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security." 65 In Salmon v Blackford, 18 February 1997, unreported, the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said at page 6: "The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case. The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty. " 66 This seems to indicate a different approach to that referred to by the High Court in White v Barron. 67 In this case the evidence is clear that if the plaintiff received the house absolutely, he would leave it to his son and not to the deceased's children. However, as was pointed out by Sheller J, this is of little weight. The first defendant, Patricia Donnachie, has clearly established some need. She is estranged from her husband and her job does not provide her with much income. The provision made for the plaintiff was restricted to a right to live in the house provided he was not in another de facto relationship. It did not provide for substituted accommodation and this is not proper provision. 68 If there is one factor that stands out in this case it is that the plaintiff cannot be trusted to safely invest any sum of money. His history shows that he would use any funds for gambling or on alcohol which would be detriment of his health. 69 On other occasions I have referred to the comments by Young J in Bondy v Vavros, unreported 29 August 1988 and also the decision of Powell J in Howarth v Reed unreported 15 April 1991. There His Honour refers to the possibility of a provision not being applied by the person for the purposes intended by the court. At page 43 and 44 His Honour went on to say:- "While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the Judgment of Young J. in Bondy v. Vavros (29 August 1988 (unreported)): 'I should interpose at this point that in one sense it does not matter if I form the view that a plaintiff is a spendthrift. If a person is entitled to an order, what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money may be wasted on wine, women and song in a short period of time. I have deliberately used that expression to make it clear that I am not referring at the moment to the facts of this particular case. On the other hand, when one is considering what a wise and just testator would have done, if one can see that a plaintiff is a spendthrift and the testator has arranged his will in such a way as to limit the funds flowing to the plaintiff, then one may very well come to the conclusion that the plaintiff has failed to establish that there has been any breach of moral duty." The question, then, is what is the form of order which ought now to be made?" 70 In my view it would be quite inappropriate to allow the plaintiff to have the balance of the funds from the estate after payment of legal costs as I am doubtful that he would secure proper accommodation if he was left to him. It seems to me that the offer, which has been made by the defendants, which has the support of the defendants' brothers, is a sensible way to resolve the present difficulties. At this stage it would be appropriate for the executors to borrow funds to pay the legal fees and undertake the repayment of the loan over a period of years. Provision can be made in any order for there to be a right to substitute other accommodation if it transpired that the accommodation was, in fact, unsuitable for the plaintiff and he needed nursing care or similar accommodation. 71 David Bell has not put forward any claim that he should not continue to be entitled to have a right of occupation. Accordingly, no provision in this regard should be made in the orders of the Court. 72 Another matter which needs to be considered is some contingency provision for the plaintiff. In the circumstances of this case it is unlikely that it can be provided if the house is retained or there is a change in the plaintiff's accommodation because the estate does not have sufficient funds to allow this to happen. The priority is to give the plaintiff accommodation. However, in the event that at some stage the plaintiff no longer needs accommodation in the house or in substituted accommodation, I think it is appropriate that a small proportion of the available funds be made available to the plaintiff by way of a capital sum. This amount should be 20 percent of any remaining fund after the sale of the accommodation. 73 I direct the parties to bring in short minutes of order to reflect these orders and I will hear any argument as to costs. **********

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.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (9)

Cited By (1)