7 The parties have agreed that, for the purposes of these proceedings, the value of the villa will be taken as $625,000. The residue of the estate, leaving the villa and the personal effects out of account, was approximately $195,000, of which a third is $65,000.
8 Following the grant of probate, the defendant distributed the villa, furniture, clothing, jewellery and personal effects to herself. The balance of the estate was paid into the trust account of her solicitors, Solari Legal ("the trust account"). On 26 October 2006, the defendant made a partial distribution of the assets of the estate by way of a payment of $40,000 to each of Toni, Margaret and the plaintiff.
9 On 5 June 2007, a deed of release was entered into between the defendant, Toni and Margaret, whereby each of Toni and Margaret was to be paid out of the estate $25,087.73 in addition to the $40,000 that she had already been paid. Those additional sums have since been paid. This means that Toni and Margaret each received one third of the residuary estate as it stood when probate was granted. In return Toni and Margaret each released the estate from any further claim.
10 The filing fee on the probate application, legal costs associated with that application and a small part of the legal costs associated with defending this claim have also been paid out of the trust account. As at 6 March 2008, the balance of the trust account was $8,483.71.
11 If the villa were sold and the estate had to bear the outstanding costs of these proceedings (which there seems to be no dispute are in the vicinity of $95,000), there would be left a fund of approximately $505,000, out of which the plaintiff could be paid her outstanding entitlement under the will or any greater provision made for her by the Court, with the balance passing to the defendant.
The Plaintiff
12 The plaintiff lived in the family home during the whole of her schooling and while she was training as a primary school teacher, moving out in 1970 to take up employment as a teacher at Ingleburn Primary School.
13 In 1974, she married Terence Griffiths, with whom she had three children, Mark, born 14 September 1974, Michael, born 5 February 1979, and Ashleigh, born 24 November 1980. She also has two stepchildren from that marriage, Melinda, born 12 September 1966 and Matthew, born 21 October 1969, who are both financially independent of the plaintiff. The plaintiff also has four grandchildren.
14 Between 1977 and 1981, the plaintiff and her family lived in Canberra and then the United States of America, due to her then husband's work commitments with the armed forces. In 1982, the family returned to Sydney and from then until the testator's death the plaintiff resided in close proximity to the testator.
15 In 1992, the plaintiff ceased her employment as a school teacher. In 1999, she obtained fulltime employment with the Commonwealth Public Service, where she has worked until the present, currently as the Deputy Special Projects Registrar for the Sydney office of the Australian Federal Police. The plaintiff is in a permanent fulltime position that involves ensuring that the operational activities of the Australian Federal Police "conform to AFP National Guidelines, AFP Practical Guidelines and legislative requirements."
16 The plaintiff and her husband separated in 1999 and divorced on 22 April 2000. A property settlement took place between the two in 2001. Following the settlement, the plaintiff purchased her current residence, a home unit in Gymea, and invested the remaining money in superannuation and a savings account. She has received no financial support from her ex husband since the settlement.
17 According to medical reports by the plaintiff's general practitioner, Dr Roslyn Ridgeway, dated 25 July 2007 and 30 June 2008, and the plaintiff's treating chiropractor, John Kelly, dated 25 January 2007, that are in evidence, the plaintiff suffers from the following health problems:
(a) mild chronic lymphoedema in her back legs;
(b) chronic back problem;
(c) lack of balance;
(d) intermittent stiffness in the neck;
(e) jaw clicking and tempero mandibular joint dysfunction (limited chewing power);
(f) intermittent pains in right chest and right axilla;
(g) prone to sinusitis;
(h) left knee problem;
(i) mild concentration difficulties; and
(j) irritable bowel syndrome ("IBS").
18 In their opinion, the above health problems were exacerbated by a car accident in 2005 and, in John Kelly's opinion, the plaintiff's back and neck problems are increased by the extensive computer work required by the plaintiff's employment. Dr Ridgway commented, that it "would be preferable for Mrs Griffiths to be able to reduce her workload and work hours and/or retire early" to alleviate these problems.
19 Perhaps the most serious of these problems is the IBS. On her own account, the IBS causes the plaintiff intense lower abdomen cramps, severe pain, vomiting, going frequently to the toilet, tiredness and feeling worn out. The plaintiff has suffered from these symptoms since 1994, but IBS was not diagnosed until 2005. Dr Ridgway referred the plaintiff to Dr Peter Gottlieb, a gastroenterologist and consulting physician. In his report dated 25 March 2008 that is in evidence, Dr Gottlieb expressed the opinion that the plaintiff's IBS symptoms are exacerbated in a stressful environment and that these symptoms will continue as long as she remains under stress. In a subsequent report of 13 May 2008 he stated that IBS has no cure, nor any specific treatment.
20 The plaintiff and the testator had a loving relationship. Except for the four year period when she lived in Canberra and the United States due to her ex husband's work commitments, the plaintiff and the testator visited each other regularly. Until the testator's illness was diagnosed, they saw each other for social occasions at least once a month and on other occasions such as birthdays, Mother's Day, anniversaries and Christmas celebrations. The plaintiff and her ex husband assisted the testator and her husband in the sale of their wholesale business in 1997 (as to which, see [26] and [27] below). After her divorce, the plaintiff visited the testator weekly for dinner until she purchased her present home in Gymea. From the time of the testator's diagnosis in 2004, the plaintiff visited the testator regularly and assisted in her care, rearranging her work commitments every Monday fortnight so that she could attend to the testator's medical needs and provide relief to the defendant. She was with the testator at the time of her death in June 2006.
21 The plaintiff has an annual salary of about $72,000, with a weekly net income in the vicinity of $948. Her weekly outgoings total $1,139. Accordingly, it is the plaintiff's evidence that her expenses exceed her income by $191 per week and that she is using her savings to meet this deficit.
22 Her assets are as follows:
(a) home unit in Gymea $420,000 (subject to security for loans to daughter of $55,000 and son $60,000);
(b) home unit in Coolum Beach, Queensland $315,000 (investment property subject to mortgage of $292,000);
(c) maxi Savings Account $120,000;
(d) superannuation $99,000;
(e) motor vehicle $18,500; and
(f) furniture $20,000.
23 The plaintiff's daughter, Ashleigh, currently receives financial assistance from the plaintiff of $500 per week. Additionally, the plaintiff purchased an $8,000 diabetes pump for her daughter in 2005. The plaintiff submitted that the weekly assistance is provided to her daughter because of her daughter's pregnancy, because of medical complications caused by her Type 1 diabetes and because of her resulting incapacity to work during the pregnancy. Further, the plaintiff said that, due to these medical complications, it is likely that she will be required to relocate to Queensland to care for her daughter for the remainder of her pregnancy.
24 In addition to the above, the plaintiff has taken out two loans (as the primary borrower) for the benefit of her children, Ashleigh and Mark, providing as security her home in Gymea. To Ashleigh she has lent $55,000 and $60,000 to Mark. Both children have been making periodic repayments of the loans. In the event that the children's obligations are not honoured, the plaintiff will be liable for the repayments.
The Defendant
25 The defendant is considerably younger than her other three siblings, being 12 years younger than the plaintiff. The defendant has never married and has no children. She lived for the majority of her life at the family home and, after the death of her father, at the villa with the testator until her death. She had a close relationship with both the testator and her father. The defendant completed her Year 10 School Certificate in 1978 at Gymea High School and completed a secretarial course at Cambridge Secretarial College.
26 In 1978, the testator and her husband commenced the wholesale business A E Westernhagen & Co that sold cake making and decorating supplies ("the wholesale business"). In 1978, they purchased a retail business, Cake Decorators Suppliers trading as "the Honey King", selling cake making and decorating supplies ("the retail business"). In 1979, following the completion of her secretarial course, the defendant was employed full time by her parents on award wages in the retail business to look after its day to day management. She continued employed there until 1997.
27 In 1997 the wholesale business was sold with the assistance of the plaintiff and her husband. Also in 1997, the testator and her husband transferred the retail business to the defendant for no consideration. The defendant operated the business from 1997 until 1999 as its sole proprietor, receiving approximately $430 gross per week. In 1999, she closed the business.
28 Following the closure of the retail business, the defendant obtained part time employment at K-Mart, Sylvania, first as a checkout operator and later as a service coordinator. The defendant now works at K-Mart, Sylvania in the book department on a permanent part time basis of 35 hours per week.
29 Following the testator's diagnosis in January 2004 with multiple myeloma, the defendant became the testator's primary carer until her death. The defendant worked three days a week and arranged her work around the care and medical treatment requirements of the testator. This included caring for the testator during the majority of the week, driving the testator to and from her medical appointments, attending to the testator's treatments and housekeeping and maintaining the villa (except for cleaning the testator's bathroom). From the time when the testator was hospitalised on 26 May 2006 until her death in June 2006, the defendant took leave from her work to care for the testator. She was with the testator on the day of her death. The defendant continues to reside in the villa.
30 In a report, dated 29 June 2007, that is in evidence the defendant's general practitioner, Dr Ros Maskiell, stated that the defendant has ongoing health problems related to an under active thyroid (hypothyroidism) and depression resulting from these proceedings.
31 The defendant's financial circumstances are set out below. The defendant stated that her weekly net income is around $479 and her outgoings are $437. The defendant's assets are as follows:
(a) villa in Sylvania $625,000 (unencumbered, transferred in accordance with the testator's will);
(b) St George Bank Savings account $6,000;
(c) St George Bank Portfolio cash management account $14,479;
(d) superannuation $37,000;
(e) Telstra shares (400 shares at $4.68) $1,872;
(f) IAG shares (325 shares at $5.72) $1,859;
(g) motor vehicle $12,000;
(h) estate furniture $10,000 (transferred in accordance with the testator's will); and
(i) personal effects and furniture $600.
32 It should be noted that, in 2004, the testator made a gift to the defendant of $20,500 for the purchase of a Toyota Corolla motor car. The testator did not drive and the defendant used this car to transport the testator to her various medical appointments and for the maintenance of the villa as well as for her own personal use.
WITNESSES
33 The plaintiff and the defendant both gave oral evidence before me. Each gave a credible account of the relationship between herself and the testator, her financial position and, in the case of the plaintiff, her medical condition. There has been no attack made by either party on the credit of the other.
THE LAW
34 As the testator's daughter, the plaintiff is an "eligible person" pursuant to s 6 of the FPA.
35 A majority of the High Court (Mason CJ, Deane and McHugh JJ) said in Singer v Berghouse (1994) 181 CLR 201 (at 208 - 210) that the Court, in determining an application for provision under the FPA, is required by ss 7 and 9 to carry out a two stage process. The first stage requires a determination "whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life". The second stage, which arises if that determination be made in favour of the applicant, is "to decide what provision ought to be made out of the deceased's estate for the applicant". The determination of the first stage "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 correct view of the first stage is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The second question involves an exercise of discretion in the accepted sense, although that discretion must, of course, be exercised judicially. That majority of the High Court disapproved the use in determining these questions of reference to the concepts of "moral duty" or "moral obligation", or even the use of those terms, since this might be thought to place a gloss upon the statute. Whilst there has been some debate as to whether or not that view was an obiter dictum only, the Court of Appeal subsequently determined, despite the eloquent dissent of Handley JA, that that expression of opinion ought be taken in this Court as the binding view of the High Court upon this subject matter: see Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24; Massingham v Massingham NSWCA 27 June 1996 unreported.
36 The matter was revisited in the High Court in Vigolo v Bostin (2005) 221 CLR 191, where a majority of the Court, Gleeson CJ, Callinan and Heydon JJ, expressed the view that the concepts of "moral duty" and "moral obligation" may be useful guides when construing the FPA. Gleeson CJ at [15] - [25] doubted that there was any vice in references to "moral duty", provided it was regarded as a form of shorthand and not allowed to operate as a gloss upon the statute. Callinan and Heydon JJ in their joint judgment said at [117] "that moral duty and moral obligation may be relevant and within the contemplation of the Act". Gummow and Hayne JJ in their joint judgment at [73] differed in their view on this matter and thought it "better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language". Despite this difference, the Court took the view that Singer v Berghouse was an appropriate guide to the construction and operation of family provision legislation: see [5], [73] and [112].
37 I shall approach the matter as prescribed in Singer v Berghouse. This being a claim of an adult child of the testator, I shall simply carry out the two stage process in relation to the plaintiff in the context of this family and this estate. The appellate Courts have negatived that there is any "special" test or approach to the process in the case of adult children, as opposed to other persons with a claim: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; Hunter v Hunter (1987) 8 NSWLR 573; Vigolo v Bostin supra at [26].
38 The proper approach to a claim by an adult child received close consideration by Bryson J in Gorton v Parks (1989) 17 NSWLR 1. His Honour (at [10]) regarded "the bare fact of paternity" as of very great importance in relation to "morality" where the deceased has failed to discharge his or her duty as a parent. But, as to the bare fact of parenthood, without detracting from what Bryson J said, it must be remembered that Meagher JA had previously said in Hughes v Hughes NSWCA 6 June 1989 unreported that the duty to make provision arose in the circumstances of that case as follows:
"Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be."
39 In Walker v Walker NSWSC 17 May 1996 unreported, Young J, as his Honour then was, conducted a compendious review of the authorities relating to estranged parents and children and said:
"… 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. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally: see for instance Scales ' case [ The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9] at 19."
40 In Day v Perpetual Trustee Co Ltd [2001] NSWSC 394 at [27] Master Macready, as his Honour then was, adopted that formulation of Young J as "sufficient and appropriate" to guide him in the decision of a similar case.
41 This is not a case, as appears above, where the plaintiff and the testator were estranged. However, in my view the approach enunciated by Young J as set out above and adopted by Master Macready is appropriate in this case also and I adopt it in this case.
42 As to dependency as a relevant factor in considering the adequacy of provision made for a plaintiff, the following cases are material. The obligation to support a dependent child has been found to be a relevant factor in determining what is an appropriate provision for the maintenance of a plaintiff: see Hughes v National Trustees supra at 147 per Gibbs J; Goodman v Windeyer (1980) 144 CLR 490 at 498 per Gibbs J; Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [86] per White J.
43 In Ball v Newey (1988) 13 NSWLR 489, Samuels JA considered the meaning of "dependent" and "dependency" at 490:
"'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probablities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."