Martin v Brustolin

2348/01 Ester Martin v Guiseppe Brustolin JUDGMENT 1 Master: This is the hearing of proceedings under the Family Provision Act 1982 (NSW) in respect of the estate of the late Mario Brustolin who died on 29 October 1999. The deceased was survived by the plaintiff who claims to have been his de facto partner and by the defendant, his brother. The deceased had no children. The will of the deceased 2 The deceased made his last will on 21 March 1980 under which he appointed his brother, the defendant his executor and gave to him the whole of his estate. Assets in the estate 3 At the date of his death the deceased owned a home at Merewether a Newcastle suburb, a vacant block of land and some other cash assets. The executor realised these assets and the funds received amounted to $317,204.67. The deceased also owned some land in Italy on which was erected a dilapidated house which was uninhabitable. The land is valued at $69,501.00. 4 The executor has incurred or will incur expenses including the cost of a memorial to be erected in Italy in the sum of $21,294.86. The net amount of the estate that has been collected and distributed by the executor is $361,410.81. Although no provision was made in the will of the deceased for the plaintiff after the sale of the deceased's house the defendant paid to the plaintiff the sum of $105,000.00 from the proceeds of sale. 5 Both parties have incurred costs in the proceedings. These have in some measure been increased as the plaintiff has retained different solicitors from time to time. The plaintiff's cost up to and including the conclusion of the hearing are estimated at $78,500.00 and those of the defendant at $39,500.00. This is a total of $118,000.00. The plaintiff's elder daughter Patricia has already paid some of the plaintiff's costs. Shortly after the payment from the defendant to the plaintiff the plaintiff paid the sum of $90,000.00 to her daughter. The daughter still retains $36,000.00 but the balance has been expended in meeting payments on account of the plaintiff's costs to date. The amount of the plaintiff's costs seems extraordinarily high. Indeed, the costs should have been substantially less given that the matter was reasonably simple, not that complex and only ran for one and a half days. This case stands as an illustration of an unfortunate but more frequent trend in matters of this nature in as far as costs of the proceedings escalating out of all proportion to the amount involved. It is hoped that in the near future the Court will be able to do something to make costs more proportional to the issues involved. 6 In addition to the payment that the executor made to the plaintiff, the plaintiff has also received a sum of $8500.00 from a joint bank account she had with the deceased at the date of his death. She also received some furniture of the deceased and the defendant gave her daughter a car valued at $10,000.00. A family history 7 The plaintiff was born in Estonia on 16 December 1928. The deceased was born in Italy on 5 June 1931 and his brother was also born in Italy in 1937. In 1944 during the course of escaping from her homeland the plaintiff was transported to Germany and placed in various labour camps. Having escaped from there she immigrated to Australia and arrived in Melbourne in 1949.

8 In 1949 the plaintiff commenced work at Stockton mental hospital as a nurse's aide. After some 18 months she was employed as a nurse. The plaintiff married John Joseph Martin in 1953 and had two children by that marriage. These were Patricia, born on 30 May 1954 and Suzannah, born on 14 November 1955. 9 It was in 1960 that the deceased and his brother immigrated to Australia from Italy. 10 In 1964 the plaintiff separated from her husband and received custody of her children. She then resided in premises at Carrington, a suburb of Newcastle. There is some difference on the evidence as to whether the plaintiff and the deceased first met in 1965 or 1968. Certainly it had occurred by 1968 as that is when the deceased moved from Sydney to Newcastle and he first mentioned the existence of the plaintiff to his brother. 11 They did not live together at this time although the relationship developed from then on. In 1970 the plaintiff moved into a two-bedroom Housing commission flat in Newcastle. In the early 1970s the deceased provided some financial support for Patricia while she undertook two years study at a Teaching College. 12 In 1979 the deceased paid for a trip to Estonia by the plaintiff. About that time, the daughter Susannah and a friend visited the deceased's mother in Italy. As I mentioned, it was on 21 March 1980 that the deceased made his will, leaving his entire estate to the defendant. Between 1978 and 1980 the deceased purchased his house at 200 Scenic Dr. Merewether Heights. After the purchase the plaintiff moved into occupation with the deceased in his house and her daughters remained in her Housing commission flat. At times Patricia would come and stay with the plaintiff and the deceased in the deceased's house for a day or so. 13 These living arrangements continued until the mid 1980s when the deceased began to have problems with his business. As a result the relationship between the deceased and the plaintiff became very strained and in 1986 the plaintiff returned to her Housing commission unit. Thereafter their relationship continued and she visited the deceased some two to three times a week. On occasions she would stay the night. She says she spoke to him by phone everyday. 14 This continuing involvement was illustrated in 1987 when the deceased giving the plaintiff's daughter Patricia away at her wedding. 15 In 1990 the deceased became ill and was diagnosed with diabetes. As a result of his illness his right leg was amputated. He spent some three months in rehabilitation at the hospital. He returned home and commenced walking about the local area and dealing with his difficulty. He had his car modified so that he could continue to drive and have some degree of independence. 16 In 1995 the deceased paid for the plaintiff's airfare when she flew home to Estonia and gave her some money towards the trip. In 1996 the plaintiff suffered a back injury that still troubles her. In 1999 the deceased once again paid for the plaintiff's airfare to Estonia and gave her some money towards the trip. 17 The deceased died on 29 October 1999 and probate of his will was granted to the defendant on 18 January 2000. The deceased's home was sold in March 2000 and the payments to the plaintiff to which I have made reference were then made. The summons in this matter was filed on 27 April 2001 within the time limited by the Act. The plaintiff's eligibility 18 The plaintiff claims to be an eligible person on a number of different bases. The first claim that she makes is that she was living in a domestic relationship with the deceased at the time of the deceased's death.

19 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 (NSW) 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 (NSW). 20 The Property (Relationships) 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." 21 It can be seen from the terms of s 5 (1) of the Property (Relationships) Act that a domestic relationship can be either a de facto relationship or a close personal relationship. The definition of 'de facto relationship' itself appears in s 4 of the Property (Relationships) Act and is in the following terms:

(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,

(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,

(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 and the Family Provision Act - see Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. 23 Apart from the exclusionary matters in s 5(2) of the Act 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) of the Act 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, the different definition for a "de facto relationship" 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 So far as the first requirement is concerned, since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements. 25 The second requirement is cumulative. There must be both domestic support and personal care. 26 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." 27 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:

(a) The person concerned. (b) An employed valet or lady in waiting,

(d) A daughter for her elderly incapacitated mother. 28 The legislation excludes the first two but would include the last two examples. 29 The plaintiff claims that she qualifies at the date of death both in respect of a de facto relationship and a close personal relationship. It is plain that the plaintiff and the deceased lived together at the deceased's house from a time between 1978 and 1980 until 1986. The defendant does not concede that there was a de facto relationship at that time but it is fairly obvious from the matters, which I will next consider that there was at that time such a relationship.

30 I turn to consider the question of whether or not there was a de facto relationship between the plaintiff and the deceased by reference to the various headings to which I have referred above. However, I will first deal with the plaintiff's credit. It is clear that the plaintiff was happy to retain her housing commission flat when she was living in a de facto relationship with the deceased at his home. She did not tell the department of this fact. She says the deceased had no compunction in accepting whatever the Government made available but that is no excuse. She also clearly omitted financial matters from her affidavit, and misrepresented what she received from the estate. These matters reflect badly on her credit but I still had the impression that she endeavoured to give accurate oral evidence. I will accept her evidence with some reservation as it is clear that she was opportunistic in presenting her affidavit case. The duration of the relationship 31 The relevant period is the period 1968 to 1999. The nature of the relationship is explored hereafter. The nature and extent of common residence 32 There is no substantial dispute between the parties in respect of the extent of the common residence. It only occurred between 1978 to 1980 and 1986. Before that period although there was a discrete sexual relationship, the deceased did not stay overnight at the plaintiff's residence. After 1986 there was no common residence as the plaintiff only occasionally stayed over at the deceased's house. She conceded in cross-examination that she would only visit the deceased two or three times a week and occasionally on these occasions she would stay overnight. This was different to the more expensive case she made in her affidavit evidence. Whether or not a sexual relationship existed 33 There was evidence on this aspect by the plaintiff. She indicated that they had a sexual relationship from shortly after their first meeting until about 1986 when the deceased's diabetes interfered with his ability in this regard. I accept the plaintiff's evidence in this respect. The degree of financial dependence or interdependence and any arrangements for financial support between the parties 34 Each party had their own income during the relationship. They did have a joint bank account. There was some dependence, which occurred principally by way of support for the plaintiff by the deceased. This mainly concerned payments for overseas trips and assistance with the education of the plaintiff's children. The ownership, use and acquisition of property 35 The plaintiff rented her own home and owned her personal effects. She had virtually none of her own furniture at the deceased's home except a piano. The deceased had his own property and furniture and apart from a joint bank account there was no mutually acquired or owned property. The degree of mutual commitment to a shared life

36 It is plain that there was a substantial commitment to a shared life in the years when the plaintiff lived with the deceased in his house. It is also clear as put plainly by the plaintiff in her affidavit evidence that there were enormous difficulties between them in the mid 1980s caused mainly by the problems the deceased was having with his business. Although she loved the deceased, the plaintiff made a conscious decision that she would have to leave him as otherwise their relationship would be finished. It is probably as a result of the plaintiff's decision to leave him that the plaintiff and the deceased managed to continue a relationship on a different basis. In my view there was not then the commitment to a life, which involved living together, but a commitment to helping each other as long-term friends. It seems clear on the evidence that throughout the whole period of their relationship it was an exclusive one for both the plaintiff and the deceased. The care and support of children 37 The plaintiff had children and I have already recounted some of the assistance, which the deceased gave to the plaintiff's children. As he had no family himself, it is clear that the deceased took an interest in the plaintiff's children and ultimately the plaintiff's grandchildren. This occurred particularly in the first part of their relationship before the plaintiff and the deceased commenced living together. Thereafter although there was contact with the growing up of the children there was less opportunity for this contact. The performance of household duties

38 I accept the plaintiff's evidence that from an early time in the relationship the plaintiff would mend and wash the deceased clothes. She assisted with housework and cooking when they lived together and this assistance continued in the period after 1986. She did however concede in cross-examination that from about 1996 onwards, when she had problems with her back and her knees that there was not much that she was able to do for the deceased in this regard. This, together with the deceased's attitude to tidiness in his house, probably led to many of the comments in the evidence as to the very untidy state of the deceased's house after he died. The reputation and public aspects of the relationship 39 Apart from talking about spending weekends together and some photographs of some family occasions there is not a great deal of evidence about the public aspects of their relationship. One witness a Mrs Armstrong who was a familial friend gave evidence of the family nature that was obvious when they were living together. 40 A consideration of all the matters I have referred to above indicates to me that there was a de facto relationship between 1978 to 1980 and in 1986. Given the substantial change in the relationship brought about by factors beyond the plaintiff's control there was a clear change in the relationship and in my view it ceased to be a de facto relationship at the time when the plaintiff left the deceased's house in 1986. This is not to decry the fact that thereafter there was a continuing relationship in which there was support and devotion between the plaintiff and the deceased. 41 I turn to whether there was a close personal relationship at the date of death. Given my findings above it is plain that the plaintiff and the deceased were not living together at the date of death. In these circumstances there can be no such close personal relationship at the date of death. Although there was evidence of domestic services provided by the plaintiff to the deceased there was no evidence of personal care being provided. 42 I now turn to the question as to whether or not the plaintiff was an eligible person on the basis that she was a member of the household of the deceased and at some time dependent upon him. Given the admitted de facto relationship between 1980 and 1986 the plaintiff was certainly part of the household 43 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. '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 L.J. 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 probabilities'. 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."

44 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. 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': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

45 This passage emphasises the factual nature of dependency be it financial or otherwise.

46 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 47 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

48 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Importantly, in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 49 In Williams v Legg (1993) 29 NSWLR 687 the Court in considered a case of a young child needing mothering and pointed out that the absence of financial dependence is not conclusive. 50 Given that the relationship in the present case occurred in the home of the deceased, the plaintiff was in fact dependent upon him for her accommodation, notwithstanding that she retained her housing commission flat. In these circumstances I am satisfied on this basis that the plaintiff is also an eligible person. 51 However, in respect of the plaintiff's eligibility under this part of the section it is necessary to consider s 9 (1) of the Family Provision Act. That being, the Court first determining whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 52 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." 53 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA given on 13 November 1998. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard. 54 When considering the matter on the traditional basis it is plain that there has been a six or seven-year de facto relationship followed by a close friendship during the further fourteen years. There was also the close friendship and sexual relationship between 1968 and 1978. 55 In my view, leaving aside for the moment the question of whether or not the payment made by the defendant of $105,000.00 after the date of death affects the matter, on the traditional test there are factors warranting the making of the application. I will now go on to consider the prospects of success. 56 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At pages 209-210 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 Limited . 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, 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 57 The plaintiff is 76 years of age, single and has no dependants. Her children are adult and are a support to her. 58 She lives in a rented housing commission flat and apart from her furniture, she has no assets of substance. She receives pensions of $300.50 per week on which she manages. Her doctor gave evidence that she suffers from both knee and back problems which will get worse in the future. She may need a knee reconstruction in the future. Her difficulties make it important that she obtain ground floor accommodation in contrast to her present third floor flat. 59 It is also necessary to consider the situation of any other person having a claim on the bounty of the deceased. In this case the only relevant person is the defendant. The defendant's situation in life 60 The defendant is aged 67 years. He apparently has a partner and they live in Perth in Western Australia. He owns a three-bedroom house that is unencumbered and is located in a fashionable Perth suburb. He has superannuation that is at present valued at $430,479.00 and as a result of this he receives a monthly pension of $2,589.76. This is adequate for his needs as he retired some time ago. There was some suggestion in the documentation produced by him that his superannuation amounted to some $900,000.00 in the year 2001. The evidence does not explain whether that has resulted in any other asset. 61 The only other assets which the defendant has are as follows: Car $ 3,000.00 BT Fund Investment $25,000.00 1,288 Mirvac shares 562 One Steel shares 1,202 Woolworths shares 62 In addition, the defendant has an interest in a unknown capital amount which is invested in a Flexi Property Fund giving an income of $75.00 per annum and a similar unspecified interest in ING Office Fund which gives him an income of $250.00 per annum. Even though the defendant did not disclose his financial affairs in a satisfactory way it is clear that he has adequate funds to support himself. 63 There is evidence that many years ago he lent the deceased the sum of $50,000.00 to set up the deceased's business. The deceased never repaid this and the deceased never paid interest on the sum. Consideration of the application 64 The plaintiff was at one stage the de facto partner of the deceased. In these circumstances it is useful to see what the authorities say as to how such claims are to be considered by the court.

65 In Marshal v Carruthers [2002] NSWCA 47 Hodgson J had the following to say:- "63 The Master found that Ms Carruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.

64 The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69 "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies."

65 I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here." 66 In this case there has been a 31-year relationship between the plaintiff and the deceased. It was however only a de facto relationship for a period of 6 or 7 years. The happiness of the relationship is something to which I have already referred but this is not to decry the fact that their friendship after 1986 was one in which both supported the other. The plaintiff and the deceased had no children together, but in the early years of their relationship the deceased assisted the plaintiff with the support of her children. 67 The plaintiff did not contribute to the estate of the deceased and importantly she has already received substantial distribution on an ex-gratia basis. Additionally, during his lifetime she received some support from the deceased. 68 It is necessary to see how the plaintiff says she was left without adequate and proper provision for her maintenance, education or advancement in life. The only matter identified by the plaintiff was the need to acquire some accommodation of her own. She suggested sufficient to purchase a 1 or 2 bedroom unit at Merewether. Such units can be purchased for approximately $250,000.00. 69 Her daughters gave evidence that they had funds which they could advance or return to the plaintiff for this purpose. Patricia could make available $30,000.00 and Suzanne $36,000.00 which was given to her by her mother. 70 As I have mentioned the plaintiff asks for sufficient funds to purchase a unit taking into account the repayment of $66,000.00. After allowing for the costs of such a purchase she asks for another $200,000.00 to be paid by the defendant. 71 One has to look at this in a context of the estate as it is now known to exist but bearing in mind that the plaintiff was paid $105,000.00. The land in Italy is of no interest to anyone and the defendant says that he cannot sell it. Whether that is true or not cannot really be tested in these proceedings since the value ascribed to it one assumes some money might be received from it. 72 Including the value of the Italian land the amount distributed was a little less than one third of the estate. In the context of this relationship I would not have thought that the relationship was one that would mean that the plaintiff should have expected to receive an unencumbered home from the deceased. In addition, the deceased had an obligation to his brother arising out of his brother setting him up in business many years previously, which was a not insubstantial sum. 73 In my view, having regard to the extent of the relationship and a consideration of evidence which I have referred in this judgment it would not have been appropriate for the deceased to be obliged to provide the plaintiff with an unencumbered home. Some provision for her to make her life comfortable would have been appropriate and it seems to me what the executor did was most appropriate. Perhaps the Court could vary the will in order to reflect that payment, namely, a legacy of $105,000.00 to the plaintiff but it should not provide for any additional payment. 74 Accordingly I will hear the parties on the form of orders and argument as to costs.

Last Modified: 11/17/2004 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.