LIGHT v ANDERSON

Court of Appeal (NSW)|1991-10-11|Before: Kirby P, Priestley JA, Handley JA, Like Priestley JA

KIRBY P, PRIESTLEY and HANDLEY JJA 11 October 1991 and 5 June 1992, 4 August 1992 [1992] NSWCA 136

TESTATORS FAMILY MAINTENANCE - Family Provision Act - claim by female housekeeper/companion - asserts relationship of man and wife with testator, including sexual relations - known by reputation to neighbours and shopkeepers as his wife - presented to children as housekeeper receiving wages - wages in fact terminated soon after engagement - companion returns after separation to nurse deceased during final illness - will provides for gifts to her as "companion" provided she is "employed" by testator at the date of death - claim for provision under Act rejected by Master Windeyer - appeal to Court of Appeal - held: (1) (per Handley JA; Kirby P and Priestley JA reserving their opinions): The evidence did not sustain eligibility of the companion upon the basis that she was living with testator as his wife on a bona fide domestic basis; (2) (by the Court): The evidence did establish that she was living in the testator's household and was dependent upon him; (3) Accordingly, the appellant was an "eligible person" under the Act; (4) A further provision of a legacy of $30,000 was required for her maintenance, and the Court should so order. Consideration by the Court of the applicability of Scottish authorities on marriages proved by cohabitation, habit and repute for claims of a de facto relationship under the Act. Cunninghams v Cunninghams (1814) 2 Dow 482; 3 ER 939; Campbell v Campbell (1867) LR 1, Sc and Div 182, 211 considered. Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 (SC) referred to - held - (per Handley JA; Kirby P dubitante): The authorities are applicable and provide guidance.

TESTATORS FAMILY MAINTENANCE - Family Provision Act claim - evidence on appeal - decline in value of deceased's estate deterioration in financial position of family members - held: (1) Evidence should be admitted and considered; (2) But where executors have distributed estate assets in the face of proceedings under the Act of which they have notice they cannot ordinarily rely on deterioration of their position to secure the exercise of a discretion in their favour.

WORDS and PHRASES - "living... as his wife on a bona fide domestic basis".

Kirby P I agree in the judgment of Handley JA in terms of the concurrence of Priestley JA. Like Priestley JA, I should prefer to withhold a concluded opinion on whether the appellant demonstrated that she was a woman living with the deceased as his wife "on a bona fide domestic basis". I express respectful doubt that we should import into the meaning of that expression in a recent, local, reforming statute, learning derived from the different social circumstances of Scotland more than a century ago. The Scottish marriage by cohabitation was virtually the precise equivalent of a common law marriage. De facto relationships in modern Australian society, for which the Act provides, are much more variable in their characteristics. They are often less enduring than a nineteenth century marriage in Scotland and yet they are the kinds of relationship for which Parliament has provided in s6 of the Family Provision Act 1982.

Typical of such cases, in the instant case there were indications in the evidence pointing to completely opposite conclusions. The testator certainly presented a different kind of relationship with the appellant when in the company of his children from that displayed when in the company of others.

This is by no means surprising, given the fact that he was sixty-five years of age when his relationship with the appellant commenced and given his religion and relations with his children. Common experience teaches that people of the testator's generation often retain attitudes to personal and sexual relationships which are different from those exhibited by people of younger years whose relationships principally occasioned the De Facto Relationships Act and the provisions of the Family Provisions Act upon which the appellant relies.

Some of the evidence upon which the respondents relied to resist the appellant's claim did not withstand close examination. Thus, the deceased's daughter had an established interest in a men's outfitting business. The Master appears to have placed considerable weight upon the fact that the testator's clothing, even his underclothing, were provided by that daughter and not by the appellant. However, in the circumstances, such provision was not as surprising as otherwise it might have been. It certainly did not contradict the appellant's evidence concerning her relationship with the testator.

In the end, I have concluded that the Master erred in rejecting the appellant's claim that the appellant was a member of the deceased's household and was dependent upon him as such. I certainly agree that not every live-in help attracts the operation of s6(2)(d) of the Family Provision Act. But in the instant case, the established nature and reputation of the relationship between the appellant and the deceased certainly brought her within the class for whom s 6(2)(d) was enacted. She was therefore an "eligible person".

This decisions enlivens the power to make an order for her maintenance pursuant to s7 of the Act. In this case such an order should be made in the exercise of the Court's discretion. See Benney v Jones (1991) 23 NSWLR 559, 569 (CA).

Like Priestley JA, I have concluded that the legacy proposed by Handley JA is appropriate. It would not be different in this case were the matter to be dealt with under the first, and not the second, head of claim. I also agree with the way in which Handley JA has dealt with the additional evidence and submissions received by this Court on and after the proceedings were first listed for judgment on 5 June 1992. For these reasons I agree in the orders which Handley JA has proposed.

Priestley JA I have had the benefit of reading in draft the reasons of HandleyJA in this appeal. On the first question he deals with, I wish to reserve my opinion. On the view I take of the second question in the appeal, it is unnecessary for me to come to a concluded view on the first, which strikes me as being of some difficulty. I refer particularly to the connotations at the time of enactment of the Family Provision Act of the words in the definition of "eligible person" s6 "a woman who, at the time of [the deceased person's] death was living with the deceased person as his wife on a bona fide domestic basis".

On the second question, I agree with Handley JA, both as to the question of dependence and its consequences and as to the further provision which he suggests should be made. In the circumstances of the present case, that amount is the same as I would have suggested should be awarded had I come to the positive conclusion sought by the appellant to the first question.

I thus am able to agree with the orders suggested by Handley JA without the need, on this occasion, to examine the full meaning of the words in s6 that I have mentioned.

I agree with the observations made by Handley JA on the matters raised by the parties pursuant to the events of 5 June 1992.

Handley JA This is an appeal from a decision of Master Windeyer (as he then was) in a case under the Family Provision Act. The deceased, the late Francis George Anderson, died a widower on 26 January 1989 aged 73 years. He left an estate valued for probate purposes at $824, 220 and a will dated 26 March 1987 in which he appointed his son and daughter executor and executrix. They proved the will. Under the will the deceased gave the appellant should she "be in my employ at the time of my death" a legacy of $40, 000, his Mercedes, some household effects and the right to reside in his house rent free for three months. The will continued:- "... all of which gifts I am making to her in appreciation of her kindness and help to me during the period of her employment as my companion PROVIDED that should the said CECIL OLIVE LIGHT not be in my employ at the time of my death THEN I DIRECT that these bequests shall all lapse and fall into the rest residue and remainder of my estate." The deceased left the rest of his estate to his son and daughter.

The appellant brought a claim under the Act for further provision alleging that she was an eligible person on one or other of two bases. Her primary submission was that she was "a woman who at the time of his death was living with the deceased person as his wife on a bona fide domestic basis" within para(a)(ii) of the definition in s6(1). Her alternative submission was that she was a person who was "wholly or partly dependent upon the deceased" who had been "a member of a household of which the deceased person was a member" within para(d) of that definition. The Master rejected both claims and dismissed the appellant's summons with costs. Her appeal to this Court has been supported on both grounds.

The appellant answered an advertisement by the deceased's children and obtained a position as his housekeeper in February 1981. There was a trial period of three or four weeks and she was then invited to remain on a permanent basis. During the trial period she was paid $100 a week by cheque. At the time the deceased was living at Chittaway Point near Gosford. After the trial period the appellant told the deceased that she was a pensioner and could not continue to receive both the full pension and $100 a week. An arrangement was then made that she would be paid in cash.

Apart from two interruptions the appellant remained with the deceased until his death. Early in 1984 she left and went to the United States with a male friend for a few weeks. She said she and the deceased had quarrelled and she had "terminated the association".

However the appellant's sister said that, by arrangement with the appellant, she stayed with the deceased while the appellant was away and looked after him until the appellant returned. The appellant left the deceased a second time in 1986 again, according to her, because of a quarrel. Shortly afterwards the deceased had a mild heart attack and his daughter rang the appellant and asked her to return and she did so.

Late in 1986 the deceased sold his house at Chittaway Point and moved to North Rocks to be closer to his son. The appellant moved with him. The deceased and the appellant were still living there at the time of his death.

She said that after about twelve months the relationship between her and the deceased became one of man and wife. She said that she and the deceased did sleep together on occasions and had sexual intercourse although she agreed the deceased was "not quite" impotent. However at both Chittaway Point and North Rocks they had separate bedrooms and on the evidence the Master concluded that apart from odd occasions at home and when they were travelling they slept in separate rooms.

There was evidence which the Master accepted that the appellant had the reputation of being Mrs Anderson and was known by that name to a group of persons which included her sister, the deceased's friends and others at Chittaway Point, to their neighbours at North Rocks and to some shop assistants. In this company the deceased referred to the appellant as his wife. However the Master also found that the deceased did not treat the appellant as his de facto wife in the presence of his son or daughter, their friends, his own sister, or his advisers.

The parties did not share their money or their assets. The appellant kept for herself her pension payments and her wages. The deceased paid all the expenses of the household. The appellant had one bank account in the name of Mrs Anderson with the Advance Bank at North Rocks in which she kept a modest sum given to her by the deceased for emergencies but her other accounts were either in the name of Cecil Light or in the name of Colston-Ing, the surname of her previous de facto husband. Her driver's licence remained in the name of Light. The appellant was not consulted about the move to North Rocks and played no part in the selection or the furnishing of the new house.

She said that when her relationship with the deceased changed from that of housekeeper to that of de facto wife he stopped paying her wages but continued to make regular weekly payments in cash generally of about $100 which she said were "gifts".

However the Master accepted evidence from other witnesses that the deceased had given her money in their presence which he described as wages. He also found that her evidence that the regular payments were gifts and not wages was untrue. The appellant sought to challenge these findings but the decision in Abalos v Australian Postal Commission (1990) 171 CLR 167 and the earlier cases there referred to require this Court to accept these findings.

The appellant gave evidence that she had always thought that the description housekeeper was degrading and she did not like being referred to in that way although she did not mind being referred to as a companion. Some time about March 1987 the deceased showed her his will which described her as his housekeeper. She asked him to alter this to companion and he did so.

The parties accepted that the decision of Kearney J in Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 correctly stated the legal principles which fall to be applied in determining for the purposes of this Act whether parties who were not married to each other were living together as husband and wife on a bona fide domestic basis.

".. the expression... constitutes a single composite expression..., and therefore has to be approached... as a whole... This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal... I consider that the factors referred to by Powell J, while not being regarded as a complete test, served the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows:

The nature and extent of the common residence;
Whether or not a sexual relationship existed;

The degree of financial interdependence, and any arrangements for support between or by the parties;

The ownership use and acquisition of property;
The procreation of children;

The degree of mutual commitment and mutual support; 10. Reputation and public aspects of the relationship."

After reviewing the facts of that case Kearney J said at 686 - 7:-

"T consider that the evidence establishes the indicia of a husband and wife relationship, de facto, between the plaintiff and testatrix... I consider it to be clear that this relationship had a quality of permanence, real emotional support for each other and the merging of their lives,... and that this mutuality was made apparent and held out to the testatrix's friends." Kearney J had earlier found at 685:-

"The relationship was held out as such to the friends and associates of the testatrix, including her brother, and there was accordingly the requisite repute of husband and wife relationship."

The Master's ultimate findings and conclusions were as follows:-

"Mutuality is an important part of such relationship and is missing in this case. There are some facts which do support the plaintiffs claim. They are the obvious care for each other, the occasional sleeping together, the fact that the deceased did at least on a few occasions refer to the plaintiff as his wife, and the reputation of the plaintiff as being Mrs Anderson at least in part of the North Rocks area. But against that are the following matters which I find to be more significant: the payment of wages which the plaintiff denied, the fact that the plaintiff took no part in the selection of [the] North Rocks home and its furnishings, the fact that all the [deceased's] clothes even underclothes were purchased by [his daughter], the lack of family social outings involving the deceased, the plaintiff and the deceased's children and grandchildren, the fact that tasks performed by the plaintiff fitted under the general description of those performed by a housekeeper or by a companion so far as driving was concerned, the keeping of separate bedrooms, the lack of any mixing at all of financial affairs, the fact that the deceased paid all the household expenses and accounts, the fact that the plaintiff kept her pension, the fact that the deceased did not show her as a wife or a de facto on his tax return or claim her as a dependent, the fact that the plaintiff kept her driver's licence in the name of Light and bank accounts in the surname of her previous de facto husband and lastly there is the evidence of the will itself. There is no suggestion that the plaintiff objected to anything in it other than the word housekeeper which was crossed out and companion inserted. That I think is what she was. The legacy and other benefits were dependent on her remaining in employment which is a most inappropriate expression if those involved were living together as husband and wife."

The appellant did not contend that the Master had expressly misdirected himself in arriving at these findings. The submission of her counsel was that the proper conclusion from all the evidence in the light of the Master's primary findings was that the appellant had been the de facto wife of the deceased and that this Court could and should interfere in accordance with the principles in Warren v Coombes (1979) 142 CLR 531.

Here many of the primary facts are neutral in themselves, and only take their colour from the combination of circumstances in which they occurred. Compare Edwards v Bairstow (1956) AC 14 at 36. The age of the parties and the late stage in their lives when their association commenced rendered irrelevant many of the indicia referred to by Kearney J. Moreover the disparity in their financial positions and the deceased's children and grandchildren made financial interdependence and the mingling of their assets inappropriate. Counsel for the appellant also stressed that the existence of a sexual relationship, and the care and attention which the appellant gave the deceased over a long period demonstrated that the relationship was not purely one of employer and employee on a weekly wage of $100 plus board. This may be accepted. The gifts of a mink coat and an 18 carat gold chain and the findings of the Master establish this.

However the Act does not treat all cohabitation between men and women with a sexual component as de facto marriages. As Kearney J said in Simonis v Perpetual Trustee at 686:-

"... although the living together on a bona fide domestic basis be so shown, the question is still raised... as to whether the relationship created only a household of convenience, or some form of liaison, or long term affair in which the plaintiff in effect played the role of lover and the testatrix the role of the mistress."

A critical fact in my opinion is that the deceased did not hold out or treat the appellant as his de facto wife in the presence of his own family. Any reputation which she enjoyed as his wife was strictly limited. The issue is whether this was a true marriage de facto revealed to some local friends, acquaintances and strangers but concealed from the family and its advisers or a pretence of such a marriage within a limited local circle to conceal the appellant's true role as housekeeper companion.

Similar issues previously arose under the common law of Scotland which allowed marriages to be contracted informally without any public ceremony or witnesses. Thus a marriage in Scotland at that time could be proved by "cohabitation habit and repute". See Campbell vy Campbell (1867) LR 1 Sc and Div 182 at 211 per Lord Westbury. Proof of a Scots marriage in this way does not differ from proof of a de facto relationship of husband and wife for the purposes of the Act. Lord Westbury summarised the relevant principles in Campbell v Campbell at 211:-

"... Cohabitation as husband and wife is a manifestation of the parties having consented to contract that relation inter se. It is a holding forth to the world by the manner of daily life, by conduct, demeanour and habit that the man and woman who live together have agreed to take each other in marriage, and to stand in a mutual relation of husband and wife; and when credit is given by those among whom they live, by their relatives, neighbours, friends and acquaintances to these representations and this continued conduct, then habit and repute arise and attend upon the cohabitation. The parties are holden and reputed to be husband and wife."

The nature of the reputation which must be proved was considered by the House of Lords in Cunninghams v Cunninghams (1814) 2 Dow 482 (3 ER 939). There the man employed the woman as his housekeeper. She later bore him several children.

"... Where a change in the character of the connection must be operated, and when they found the means employed for that purpose to be such as left half the world in doubt, the servants, the relations, one half thinking one way the other

half the other; at what time, in what circle, could it be said that there was such a habit and repute as raised the presumption that the parties had mutually consented to be husband and wife. He could not admit that mere cohabitation as man and woman was a cohabitation as husband and wife." Lord Redesdale at 511, 514 (949 - 950) said:-

"There must be such a cohabitation as to induce persons to form the opinion that the parties were married... The question then rested on the repute, and the parties must be reputed and holden to be married - it must not be an opinion of A in contradiction to an opinion of B, and of C in opposition to D; it must be founded not on singular but on general opinion. That species of repute which consisted in A B and C thinking one way, D E F another way was no evidence on such a subject... the repute of marriage, as he had already stated, must be general; the conduct of the parties must be such as to make almost everyone infer that they were married."

In my opinion this Court should accept the guidance offered by these authorities.

The appellant was not generally held out by the deceased as his wife and she had no such general reputation. The terms of the will show that the deceased did not regard the appellant as his de facto wife. When the will was shown to her the appellant accepted its terms apart from her description as housekeeper. Her entitlement to the legacies was conditional on her being in his employ when he died.

When the deceased showed her the will, he made her a contractual offer which she accepted by fulfilling the condition. See Schaefer v Schuhmann (1972) AC 572. After his death she received the gifts and must have done so on the only basis on which she was entitled to them. In my opinion therefore the first challenge to the Master's judgment fails.

The remaining question on liability is whether the appellant had been wholly or partly dependent on the deceased. The Master rejected this claim for the following reasons:-

"She was employed by him as a housekeeper/companion.... In other words she was dependent upon her work for her needs not upon the deceased for them." With respect, this reflects an unduly narrow approach to the question posed by the statute. In Ball v Newey (1988) 13 NSWLR 489 this Court held that whether dependency, total or partial, exists is a question of fact. In my opinion the question of dependency in this case is not concluded by a finding that a contract of service existed under which the appellant was entitled to board, lodging and $100 per week. For example a doctor might employ his wife as a receptionist in his surgery at a substantial salary but I would not have thought that this alone negatived dependency. On the other hand I would reject the view that every live-in employee is necessarily wholly or partly dependant on his or her employer. In the words of Samuels JA in Ball v Newey at 492 the relevant principles are as follows:-

".. dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance... Whether dependency, total or partial, exists is a question of fact... It is not to be determined upon theoretical considerations. It is the actual fact of dependence or reliance on the earnings of another for support that is the test... The standard of support is set by the parties themselves." The appellant was employed by the deceased for nearly eight years. During this period of very high inflation her cash wage was not increased. After March 1987 this may be explained by the deferred benefits

promised to her if she remained in the deceased's employment until his death. However this does not explain the absence of earlier wage increases. The explanation must lie in the close personal relationship established by the Master's findings. As a result the appellant was, I infer, willing to accept a situation where she became partially dependent on the deceased for such matters as travel, entertainment, and dining out. But for her association with the deceased she would have sought and obtained such entertainment etc. in the company of others and may have been obliged to bear some or all of the cost herself. Since the deceased met these costs she had no need to seek the wage increases to which inflation alone would have entitled her.

While these are not basic necessities the judgment of Samuels JA in Ball v Newey establishes that dependency for the purposes of this Act is not restricted in that way.

I conclude therefore that the appellant was an eligible person. In the facts of this case there is no difficulty in reaching the further conclusion that the deceased had a moral obligation to her which was capable of bringing her case within s7 and s9 of the Act. See Benney v Jones (1991) 23 NSWLR 559.

The remaining issue is what further provision, if any, out of the estate or notional estate of the deceased "ought" now to be made for the maintenance of the appellant having regard to the circumstances which now exist. See s7. The appellant submitted that the deceased's moral obligation was to provide her with the necessary funds for the purchase of a home unit. Some reliance was placed on a conversation between the deceased and his sister when he told her that he was providing $40,000 for the appellant in his will "towards a bed sitter like that of her sister". The appellant however submitted that a bed sitter would be inadequate, and an appropriate order would provide her with a one bedroom unit near Epping which would cost approximately $120, 000.

I have not been persuaded that the deceased owed any moral obligation to the appellant to provide her, either for life or outright, with the means of purchasing a home unit worth $120,000. During the twenty two months between the date of the will and the death of the deceased the appellant not only received her wages, and board but she also earned contractual benefits under the will. In the events that happened these benefits were worth over $3,136 per month tax free. In my view those benefits fully met the deceased's moral obligation to her for what she did during this period.

However this leaves the deceased's moral obligation to the appellant arising from the earlier period of six years when her cash wage was only $100 per week. While the appellant derived many benefits, financial and otherwise, from her association with the deceased during this period, she gave up the chance of earning further moneys and saving more towards her future housing needs.

In my opinion the benefits provided by the deceased in his will did not fully meet this earlier moral obligation. Those benefits were an inducement to her to remain with him until he died. While in terms they reflected his gratitude for past services he made them a reward for future services. She would only receive those benefits if she earned them by fulfilling the condition. It seems to me that he still had a moral obligation to the appellant for what she had done for him in the past. If because of illness or accident, or some other reason beyond her control she had been unable to fulfil the condition in the will she would have received nothing.

In assessing the extent of this obligation it is relevant to take into account that the deceased paid the appellant in cash so that she could continue, perhaps unlawfully, to receive the full age pension. Tax free earnings comprising $200 a

fortnight plus the full age pension over six years with all found represented substantial remuneration. The appellant may have saved substantial moneys during this period. She was not able to produce to the Court all her bank and building society books for this period and evidence emerged that at one stage she had an interest bearing deposit of $10,000 which she later lent to her son because he had been sick. The Master also found that the appellant failed to disclose all her assets to the Court and that this failure was intentional.

The Court should also take into account that the deceased provided in his will that the appellant was to be entitled to remain rent free in his home for three months after his death free. In fact she enjoyed a further fifteen months rent free occupation.

I consider that further provision should have been made by the deceased to reflect the appellant's lost chance during this six year period of securing further remuneration, but that in fixing the amount some allowance should be made for the tax that by law would have been payable on such income and the loss of pension entitlements that should have followed. In all the circumstances I would hold that this moral obligation should be now be reflected in an order that the appellant receive an additional legacy out of the estate or notional estate of the deceased of $30,000.

The appellant's principal submission on the appeal was that provision should be made out of the estate which would enable her to purchase a suitable "bed-sitter" home unit similar to that occupied by her sister and reliance was placed on a conversation between the deceased and his solicitor. However the Master noted in his judgment that there was no evidence before him of the cost or type of such accommodation and he could not find that the deceased had failed in his moral duty to the appellant to make such provision in her favour.

Towards the conclusion of the oral argument before this Court on 11 October 1991 the President noted that if the Court were minded to allow the appeal and make such an order it would not have the necessary evidence to enable it to do so and the case might have to be returned to the Equity Division for further hearing. After further discussion with counsel and immediately before the Court reserved its judgment and adjourned the President, on behalf of the Court, ordered that both parties should have liberty to furnish the Court with additional evidence and written submissions relating in particular to the cost of providing the appellant with a bed-sitter unit of the kind referred to in the evidence.

The Court received no further evidence or written submissions and in due course on 5 June the appeal was listed for the delivery of its reserved judgment. On that day different counsel appeared for the respondents and asked the Court to defer delivering its judgment because the respondents still wished to avail themselves of the liberty granted by the Court on 11 October last year. The Court decided to grant the respondents this further indulgence, and directions were given for the filing and service by the respondents of further affidavits relevant to the size of the deceased's estate. The appellant was given leave to apply to cross-examine the deponents of any such affidavits or to file further evidence or written submissions.

The parties availed themselves of this liberty. The respondents served and filed affidavits by both respondents together with extensive further written submissions. This evidence revealed that the respondents had each received $328,000 from the distribution of the deceased's estate, that the estate had been fully distributed while these proceedings have been pending, and that for various reasons and in various ways the personal and financial position of each of the

respondents had since deteriorated. In particular the current economic recession has had an adverse effect on the values of the assets acquired by the respondents with the moneys they had received from the distribution of the estate and the recession has affected them financially for the worse in other ways as well. In addition it appeared that the deceased's house at North Rocks was sold for $228,000 being $22,000 less than its Probate valuation.

In my opinion the matters brought to the Court's attention in the further evidence do not provide any reason for me to reconsider my earlier conclusions that the appellant had made out a case for relief under the Act and that further provision should be made for her benefit in the form of a legacy of $30,000.

The effect of such an order, apart from its consequences as to costs, will be to reduce the distribution to the respondents from $328,000 each to $313,000 each. The problems in which the respondents now find themselves as a result of having invested the moneys received by them from their father's estate in a falling property market are of their own making. The respondents as executors distributed the estate to themselves in the face of the proceedings brought by the appellant of which they had the fullest notice.

Prior to the passing of the present Act the High Court had decided in Easterbrook v Young (1977) 136 CLR 308 at 316 "that an actual distribution does not place the asset beyond the reach of the court's power to order maintenance". s24 of the Family Provision Act now provides that notwithstanding the distribution of the estate the court may make orders for provision and designate appropriate property as notional estate of the deceased to enable those orders to be satisfied.

However on general principles any inconvenience or hardship which legal personal representatives may suffer as a result of having distributed the assets of the estate to themselves in the face of a pending adverse claim could seldom, if ever, constitute a matter which would induce a court to exercise a judicial discretion in their favour. Indeed if the distribution of the estate had constituted a jurisdictional bar to the making of an order under the Act in favour of the appellant the respondents as legal personal representatives would have been personally liable to compensate her for any loss she would thereby have sustained. The relevant principle is that stated by Lord Romer on behalf of the Judicial Committee in Guardian Trust of New Zealand v Public Trustee (1942) AC 115 at 127 where he said:-

".. in accordance with the well established principles of equity... if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded."

Accordingly I have not been persuaded by the additional evidence filed by the respondents that the orders that I had previously proposed should be altered in their favour. However in view of the further time which has elapsed since 5 June Thave altered Order 4 to provide that interest on the legacy will run from that date if it is not paid within twenty eight (28) days from the making of these orders.

In our opinion the following orders should be made:-

Appeal allowed with costs.

Set aside the order of Master Windeyer dismissing the appellant's summons with costs.

Declare that the appellant was an eligible person in relation to the deceased because she was a member of the same household and was partly dependent on him.

Order that further provision be made out of the estate or notional estate or both of the deceased for the appellant in the sum of $30,000, such legacy to be paid within twenty eight (28) days and if not then paid to carry interest from 5 June 1992 at the rate of 9 per cent per annum. Liberty to the appellant to apply to the Equity Division after twenty eight (28) days if the legacy is not paid for orders pursuant to s24 of the Family Provision Act 1982 designating particular property as notional estate of the deceased.

Order that the respondents pay the appellant's costs of the summons. Order that the respondents have a certificate under the Suitors Fund Act in respect of the costs of the appeal.

Counsel for the Respondent: JS Drummond (11 October 1991)

Counsel for the Respondent: J Poulos QC / RA Parsons (5 June 1992)

Solicitors for the Appellant: Joan W Miller and Associates

Solicitors for the Respondent: Lasky and Adelstein (11 October 1991)

Solicitors for the Respondent: Messrs Adelsteins (5 June 1992)

At a glance

Court

Decision date

Before

Source

Judgment (87 paragraphs)

Parties

Cases Cited (6)