29 These words were recently approved by Ipp J in Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 when he said:
"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 s6(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."
30 The difficulties in this case occur in a couple of areas. The first one in 1997 came when there was a discussion which the deceased thought was confrontational on 30 June 1997 between him and his daughter, the plaintiff, over her mother's treatment. Apparently, without telling the plaintiff, the deceased had admitted her mother to hospital and agreed to her having ECT treatment. That treatment, of course, can be very helpful but one would have thought that the family might have been involved and that is what was the cause of the plaintiff's outburst on that occasion. They went to hospital to see her mother and at the end of the day the plaintiff suggested they cool down and think about it. She rang him up a few days later. He still insisted that she apologise to him for the way that she carried on and for being so loud and she tried to explain that she did not feel she needed to apologise. He hung up on her. That continued for two years until there came a further rapprochement. There was then the occasion that occurred at the funeral of the plaintiff's mother. She found out about it from her brother and went to the funeral, saw her father but he refused to speak to her and made it clear through her daughter that she was not to come to the wake. That was the last time she saw her father.
31 The plaintiff has, in her affidavit evidence, explained her responses to the two-page statement that the deceased left. They certainly give something of an explanation for what, on the face of the document, might seem to be rudeness or callousness on the plaintiff's part. It seems to me there is an adequate explanation but I think the truth of the matter is probably, as was suggested in cross-examination, that she is too like her father. They were so alike that they had to have their differences. Plainly I think the deceased was difficult or perhaps might be called conservative. His son had difficulties but he managed, with a degree of Christian forbearance, to look beyond it to deal with his father's difficulties.
32 Although there were these breaks and particularly a substantial one of five years at the end, I do not think that in the circumstances that they should have a substantial, although they may have some small, effect on the amplitude of some provision that might be made for her.
33 It is necessary, of course, to consider the situation in life of others who might have a claim on the bounty of the deceased. In this case the plaintiff makes it plain that she does not want to impinge upon the circumstances of her brother and the bequest that he obtained under the will.
34 Her brother has a unit which he purchased at North Ryde for the sum of $339,000 in 2001 and has a mortgage on it at present of some $32,000. He is 61 years of age and he earns, as a secondary school teacher, $55,000 per annum. His superannuation, given his length of service, is appropriate, in the order of $500,000. Other than a motor vehicle and some small credit card debts his financial situation is unremarkable.
35 The other class of people to be considered are, of course, the grandchildren of the deceased. The ones that have been named under the will are ones who have had a relationship which they have managed to keep on good terms with the deceased. It is obvious that the deceased was fond of them and he has provided for them in his will. I will deal with them individually.
36 Bartholomew Howe is 44 years old. He leaves in Queensland in rented accommodation for which he pays $150 per week. He receives a disability pension and manages to work 15 hours a week teaching English to overseas students. Last year he earned $17,994. He owes some $7,000 on a credit card which his mother, the plaintiff, has been paying off for him. He has a vehicle and just lives from week to week. His problem, which gives him his pension entitlement, no doubt, is that he suffers from chronic migraines, major depression, androgen deficiency, diabetes, haemo-chromatosis and Von Willebrands Disease. It is unlikely he would be able to work for more than 15 hours per week and plainly if he receives something from the estate he could pay his debts and perhaps look towards starting to acquire some property.
37 Phoebe Justic is 37 years old. She has been married for some 14 years and she lives at Kings Langley with three children aged from one to five years. She and her husband apparently have an investment house worth $280,000 which is subject to a mortgage of $155,000, and a home worth $470,000 subject to a mortgage of $464,000. They have credit card debts of $4000. When she was on unpaid maternity leave she was made redundant from her job at the Parramatta Rugby League Club. Her husband, who works for IBM, has a salary of $99,063 per annum. Their children are just starting school and there is a trust fund set up by the grandfather of some $36,000 for the children. Obviously she could use any amount that might come from the estate.
38 Sarah Jameson is one of the defendant's children. She was married in 2002 to Christopher and they have four children aged between five years and three months. She is a teacher and works at Barker College two days a week. She would prefer not to but it is necessary for her to do so. She earns about $15,000 per annum after tax, which mostly, probably always does, go in childcare for her children. Her husband earns $99,000 per annum in the building industry and she has a concern about his work. Their house is worth $620,000 which is subject to a mortgage of $470,000. They have substantial monthly commitments with respect to the children, meeting the mortgage repayments and other matters, which means they are just holding their own. Fortunately they have the funds for the schooling of the children which the deceased set up for them.
39 Louise Lowry is a self-employed personal trainer. She works in part-time employment at a North Shore gym and earns up to $1200 per week. Some weeks there is less and certainly her work is seasonal. She has a car which she uses to visit clients and carry on her occupation. At the moment she has some reasonably substantial debts, a loan of $18,000, a car loan of $24,000, and credit card debt of $8,000. She has rental of $1600 per month and the car loan repayments and other repayments would totally consume her income. She has no significant savings and plainly has a need to reduce her debts.
40 Caroline Helen Lowry is 29 years of age. She works with Fairfax Books, which is a division of Fairfax Media and recently has been appointed to a position of some seniority where she earns $90,000 per annum. However, her job there is somewhat precarious as her immediate two predecessors were retrenched and there are prospects that in fact the whole business might shut down. She has a car and contents which are not substantial. She has credit card debts of $2000 and savings of about $12,000. She lives in rented accommodation and pays $1344 per month. Plainly she would like to be able to pay her debts off or if she could contribute to maybe getting a house in due course.
41 Evidence has been given about the situation of the Royal Society for the Prevention of Cruelty to Animals. The Court has been fortunate to have details of the history of the organisation and the work that it does do. It is funded by donations and bequests and only receives very minimal amounts from the state. It depends very much for its work on bequests such as the present. In this case the only contact that there was between the deceased and the Society was in March 2003 when he attended at the Yagoona Centre for the purpose of adopting a maltese terrier called Samuel. That he did and that was the contact which he had.
Discussion
42 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In this respect the plaintiff put forward a number of claims. Firstly, she would like to buy a modest town house or unit in the Leichhardt area which with the expenses would come to $572,740. Secondly, because she is planning to retire at age 67 she would need an additional $61,250 to add to her superannuation to provide her with an extra $15,000 per annum which would enable her income to be supplemented without affecting her pension too much. She would like to buy a new motor vehicle for $36,750 and it is suggested she could receive some capital sum to provide for the vicissitudes in life, such as unexpected medical costs, in the sum of $200,000.
43 In McGrath v Eves [2005] NSWSC 1006 Gzell J referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:
"67 When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.
68 In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.