18 As directed by the High Court, it is necessary to look at the plaintiff's situation. He is single, has no dependants, and is presently aged sixty-three. He receives an old age pension of $190 a week. His assets are minimal, comprising cash and shares of some $ll,440, and furniture of $1,000. He has a credit card debt of about $4,000.
19 He is, however, in good health. He is currently living in the estate property, and has had the benefit of that rent-free for some time. One has to take into account, of course, his contributions to the estate. There is his undoubted payment of rates during the period up until the date of death, and the rates up until 1988 appear to be $8,416. I am satisfied that the plaintiff contributed one-half of that amount.
20 On the evidence he is said to have contributed about ninety per cent of the consumables in the house, and he has also done work on the house. He and a friend of his painted the whole of the outside of the house, including the roof. The evidence of some of the witnesses speaks of the care and attention which the plaintiff has devoted to the gardens surrounding the house, and comments made by the deceased attest to the appropriateness of the care and the efforts that the plaintiff put into looking after the deceased.
21 It is clear that there was help of a substantial nature over the two years period. The plaintiff did the housework, gave general assistance, and in fact saved the deceased money by being able to dispense with home care.
22 It is, of course, necessary for the plaintiff to demonstrate that he has been left without proper or adequate provision for his maintenance, education or advancement in life. In the present case he puts forward for consideration a claim that he should have some provision for his accommodation. It is recognised by him that the house will have to be sold, and he suggests it might be appropriate that he have sufficient funds so that he could buy a two-bedroom villa in the local area.
23 As was pointed out by the High Court in Singer v Berghouse, it is necessary to have reference to claims of any other person who may have a claim on the estate. In this case there is only one, and that is the beneficiary Joyce Buckley. She is eighty-five years of age, and is in failing health. There have been a number of reports addressing her situation. She is suffering from Alzheimer's Disease, and in a report of Dr Jolly of 14 August 2000 he speaks of her being disoriented for day and date, and that there is evidence of significant deterioration in her diagnosed Alzheimer's Disease over the last twelve months.
24 There have also been assessments of her need for home care, and I will come back to those. She lives with her daughter in a house at The Entrance. That house is owned as to two-thirds by Mrs Buckley, and as to one-third by her daughter, Mrs Hawkins. The house is not in good condition and needs painting and repairs. She has some savings of about $3,000 in a bank account. She has a pension of $371 per fortnight, and her daughter controls this through a power of attorney, and expends it for her needs.
25 It is apparent from the report of the carers that there is still a capacity for Mrs Buckley to look after herself. She needs supervision and assistance. At the moment she is managing in the house which is owned by herself and her daughter. In the event that it became too difficult for her to remain at home, she would need to go into nursing home accommodation.
26 In the public system, if it is available, that can be provided at the cost of the pension entitlement. However, it is not always available, and in the private sector one might even find one has to pay between $800 and $1,000 in order to obtain appropriate private nursing home care.
27 There are a few other minor matters that need to be attended to at the home where Mrs Buckley is living at the moment to make it safe for her. These involve getting her an alarm system at the cost of $2,150, doing some fencing at $3,685, and some occupational therapy will be required costing some $750.
28 The report by Miss Flannagan which is in evidence before me talks of the possibility of there being a carer necessary in the event that Mrs Hawkins will not be able to care for her. The cost of such care can be measured. Common rates are $25.50 per hour, and it depends, of course, on the extent of the care as to what the likely costs are going to be.
29 On the evidence before me it is hard to make any assessment of a number of areas. There is firstly no evidence to point to life expectancy, although clearly there is a life expectancy which, as I say I cannot determine. The deterioration of the condition can only be speculated upon by the doctors, and one cannot form a view as to the exact progression of the disease experienced. It tends to suggest that at some stage care might be necessary, perhaps on a relieving basis to relieve Mrs Hawkins, and that at some later stage there will be a need to perhaps go into a nursing home for more detailed care.
30 I have mentioned that the plaintiff advances, as a need that he puts his application upon, that he desires accommodation in a two-bedroom villa unit. He wants a two-bedroom unit so his son can come and stay with him occasionally. It would not, however, be essential for it to be so. There is evidence of the cost of alternate accommodation in the area. Robinson and Robinson, agents, said that two-bedroom villas, excluding waterfront, range from about $150,000 to $190,000, and that two-bedroom units range from $125,000 to $160,000. One-bedroom units, which are rare in that locality but exist in Gosford, range from $90,000 to $115,000.
31 Messengers Real Estate talk of the price of a two-bedroom home unit varying in the range of $120,000 to $160,000, but suggest there may be properties that fall below or above that range. They put villa units with private courtyards in the range of $175,000 to $210,000.
32 The question which has to be addressed is whether it is appropriate that a claim of this sort be recognised.
33 Widow's claims are frequently the subject of applications in this Court. The court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said,
"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to this widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and third, that she have available a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".
34 In contrast, if one looks at statements about the general principle in the same respect for children, one finds in Shearer v The Public Trustee and Hawke v The Public Trustee, a decision of Young J of 23 March 1998, a somewhat different approach. His Honour said:
"Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case for children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own,"
Here, of course, we are dealing with quite a different relationship, that of two siblings, and in the ordinary case such a relationship would not be considered in the community as close as that of a married couple or of parent and child. However, in this situation, the present case, there are some other factors and these partly relate to the care which was shown to the deceased by the plaintiff in the last few years.
35 One can also take into account the size of the estate, to see whether some such provision might be appropriate, but in doing so one must be careful of the position of Mrs Buckley. She, of course, does not have to prove her entitlement. She is in fact the chosen object of the testator's bounty, and she obviously needs a sum for her future protection. This will either be some extensive home care, or some provision for private nursing home accommodation. She has her two-thirds interest in her house at The Entrance, which together with what she gets from the estate will have to provide for those future contingencies.
36 Having regard to all those factors, and the various claims on the testator's bounty, it seems to me that if I were to allow the plaintiff to have one half of the estate this would allow him to purchase a unit at the very bottom end of the market, and thus secure his position for his advancing years.
37 Accordingly, I order that in lieu of the provisions in par 4 of the will of the deceased, the whole of the estate both real and personal be held to pay all just debts, funeral and testamentary expenses, probate, estate, death or other duties, and thereafter be held as to one half to the plaintiff and as to one half to Joyce Olive Buckley.
38 I order that the plaintiff's costs on a party and party basis, and the defendants on an indemnity basis be paid out of the estate of the deceased.
39 There has been tendered a letter of offer by the plaintiff of 7 September 2000 in which the offer was to settle by selling the property, with the residue then to be divided after payment of expenses and costs equally between the parties. The plaintiff has done that, and it seems to me, accordingly, should be entitled to his costs from a reasonable period after that offer on an indemnity basis. Accordingly, I will vary the order that I have made by providing that the plaintiff's costs on a party and party basis up to 18 September 2000, and his costs on an indemnity basis after that date, be paid out of the estate of the deceased, and the existing order that the defendant's costs be paid out of the estate of the deceased on an indemnity basis is also retained. I order that the difference between the plaintiff's party and party costs after 18 December and its indemnity costs after 18 December be charged upon the share of the estate passing to the beneficiary, Mrs Buckley.