Michael v Public Trustee

Blore v Lang (1960) 104 CLR 124 Re Fulop Deceased (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19 Foley v Ellis [2008] NSWCA 288 Diver v Neal [2009] NSWCA 54

PARTIES : Delia Michael (Plaintiff 1905 of 2007) Public Trustee (Defendant 1905 of 2007)

COUNSEL : Mr P. Glissan (Plaintiff) Ms V. Hartstein (Defendant)

SOLICITORS : McGowan Lawyers (Plaintiff) Anthony Lentini, Solicitor for the Public Trustee (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1905 of 2007 DELIA MICHAEL -v- THE PUBLIC TRUSTEE and ORS

JUDGMENT 1 HIS HONOUR: These are two proceedings under the Family Provision Act 1982. 2 By summons 1905 of 2007 filed by Delia Michael on 20 March 2007 the Plaintiff claimed an order for provision for her maintenance, education and advancement in life out of the estate of her former husband, the late Ralph Peter Michael (to whom I shall refer as "the Deceased"). 3 The Deceased died on 7 June 2006, aged 56. He left a will dated 20 January 2005, probate whereof was on 13 July 2006 granted to the Public Trustee, the executor named in such will (who is the Defendant named in that summons). 4 By that will the Deceased gave the entirety of his estate to his widow, Minoo Rouhani-Michael. 5 The inventory of property disclosed the following assets (as well as respective estimated values thereof): House property situate at and known as 42 Greenway Drive, Carnes Hill Moneys in bank accounts and credit unions Shares 1998 Hyundai Sonata motor vehicle 6 However, by the time of the hearing, those estimated values had been revised, and the estate at the time of the hearing consisted of the following assets: House property situate at and known as 42 Greenway Drive, Carnes Hill $420,000 Moneys in bank accounts and credit unions $385 Shares $3,103 7 The house property was subject to a mortgage in an amount of about $186,500. It was estimated on behalf of the Public Trustee that the house property has a present net value of $223,498 (at an estimated sale price of $420,000, less $10,000 selling costs, less $186,502 mortgage indebtedness). 8 The Hyundai motor vehicle had been transferred to the Deceased's widow and had subsequently been sold by her for $6,000 (that amount having been used by her to defray funeral costs). In addition, the Deceased had owned burial plots valued at $4,000, which had been transferred to his widow. The Deceased also held what was described as an Interlink Roads account (valued at $200), which had been transferred to his widow. 9 The Deceased at the time of his death had certain superannuation entitlements. An amount of $74,082 had been paid to his widow by First State Super. An amount of $116,420 had been paid by Public Service Superannuation as to one half thereof to his widow and as to one half thereof to his infant daughter Jessica. 10 Subsequently, on 19 August 2008 the Plaintiff, pursuant to a consent order made in that regard, filed an amended summons. That amended summons named two additional Defendants, being Minoo Rouhani-Michael and Jessica Lauren Michael (an infant, who participated in the proceedings by her tutor, her mother Blesilda Casal-Michael). 11 By that amended summons the Plaintiff claimed additional relief, to the effect that certain moneys therein described, received by respectively the Second Defendant and the Third Defendant, be designated as notional estate of the Deceased. The substantive claim for relief was amended to seek that the order for provision claimed by the Plaintiff be made "out of the estate or notional estate or both" of the Deceased (prayer 1 of the amended summons). 12 The Deceased had been married four times. In 1974 he married Laure (now Mrs Phillipe). Two children were born of that marriage. On 15 February 1979 the Deceased married the Plaintiff in the Philippines. Of that marriage were born three sons (one of whom died in 1992, aged about thirteen). The Deceased and the Plaintiff separated in mid-1992 and divorced in 1993. (I note, however, that the application for dissolution of marriage discloses the date of their separation as being 15 June 1990.) 13 On 25 March 1995 the Deceased married Blesilda Casal. Of that marriage one child, a daughter Jessica Lauren, was born, in 1995. She is now aged thirteen. It is Jessica who was named as the Third Defendant to the amended summons. The Deceased and Blesilda Casal divorced in May 2002. 14 In October 2002 the Deceased married Minoo Rouhani. No children were born of that marriage (although Minoo had children of an earlier relationship). Minoo Rouhani-Michael (as she then became known) was named as the Second Defendant in the amended summons. 15 I shall, for convenience and without intending any disrespect, refer to the various wives, children and stepchildren of the Deceased by their respective first given names. 16 By summons 3953 of 2007 filed on 9 August 2007 Jessica Lauren Michael by her tutor, Blesilda Casal-Michael, claimed substantively an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of the Deceased and an order designating as notional estate "the death or other benefit entitlements" of the Deceased, including a specified superannuation entitlement. 17 On 2 October 2007 an order was made in each of proceedings1905 of 2007 and proceedings 3953 of 2007 that both proceedings be heard together and that the evidence in one be treated as evidence in the other. 18 The two proceedings were specially fixed to be heard together in the Family Provision Running List on Thursday, 26 February 2009, the estimated length of hearing of both matters together being two days. 19 At the outset of the hearing on 26 February 2009 the Court was informed that the claim of Jessica had been resolved, subject, first, to the approval by the Court and, second, to the resolution of the claim by Delia against Jessica in proceedings 3953 of 2007. Ultimately, the Court approved the proposed settlement of Jessica's claim, and made orders to give effect to that settlement. Thereupon, in proceedings 1905 of 2007 orders were made by consent, dismissing Delia's claim against Jessica and making no order as to the costs of that claim (to the intent that each of Delia and Jessica should bear their own costs of that claim). In consequence of the dismissal of that claim, Delia no longer pursued the relief sought in prayer 3 of the amended summons (seeking designation of moneys received by Jessica as notional estate of the Deceased), but still pursued the relief claimed in prayer 2 (seeking designation of moneys received by Minoo as notional estate). 20 Procedings 1905 of 2007 thereupon proceeded to hearing as a claim by Delia against only two Defendants, being the Public Trustee and Minoo Rouhani-Michael. 21 It was the evidence of the Public Trustee that, taking into account the actual estate ($226,987) and possible notional estate ($190,504), the total value of the estate was $417,492. However, from that total amount must be deducted the Public Trustee's commission on the realty and shares, estimated at $11,419; the agreed costs payable to the Third Defendant, Jessica, $30,000. 22 In calculating the value of the estate presently available for distribution, the costs of the present proceedings should be taken into account, since Delia, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendant, irrespective of the outcome of the proceedings, will normally be entitled to an order that his costs be paid out of the estate of Deceased. It has been estimated on behalf of Delia that her costs will total about $60,217, whilst it has been estimated on behalf of the Public Trustee that his costs will total $70,000. That is, the totality of the costs of both parties in the present proceedings are estimated to be in an amount of about $130,217. In addition, the estate will be liable for the costs payable to the Third Defendant, Jessica is an agreed amount of $30,000. Further (as I have already recorded), the Public Trustee is entitled, in the course of his administration of the estate, to commission on the realty and shares, in an estimated amount of $11,419. 23 I have also already recorded that the total value of the estate and possible notional estate is in the order of $417,500. When the Public Trustee's commission ($11,419) and the agreed costs payable to Jessica ($30,000) are deducted from that amount, there remains about $376,000. When the totality of the costs of both parties (totalling about $130,217) are taken into account, there will remain an amount of $245,864. However, it will be appreciated that of that figure an amount of $58,210 (representing her one half share in the Public Service superannuation) has already been paid to Jessica, and is the subject of the order for provision made in Jessica's favour in proceedings 3953 of 2007. In consequence, that amount will not be available as notional estate which might be subject to an order for provision in the present proceedings. 24 It follows, therefore, that, for the purposes of Delia's claim, the Court should proceed upon the basis that the distributable estate will be in an amount of about $187,650 (that figure representing both net actual estate ($55,362) and possible notional estate ($132,292). It should, however, here be recorded that the Public Trustee does not concede that the superannuation entitlements payable to Minoo were the subject of prescribed transactions which would have the effect of enabling those entitlements to be designated notional estate of the Deceased. 25 It is also relevant in regard to the assets of the estate that the foregoing amount of notional estate (representing superannuation entitlements in a total amount of $132,292) has already been paid directly to Minoo, (although, apparently, she regards that amount as frozen and not available to her pending the outcome of the proceedings). 26 Delia was born in 1950 and is presently aged 59. She met the Deceased in the Philippines in 1978, where he was visiting on a business trip. At that time Delia was working for an export company, with which the Deceased had business dealings. Delia and the Deceased married in the Philippines on 15 February 1979. (It should be noted that the marriage contract, certifying the solemnisation of the marriage on that date by a City Judge of Quezon City, discloses the Deceased as being "single", despite the fact that in 1974 he had married Laure (Mrs Phillipe) and that two children were born of that marriage). Subsequently, Delia and the Deceased after residing in the Philippines for two years, then came to Australia, where they went through a form of marriage pursuant to the Marriage Act 1961 (Commonwealth) on 19 March 1982. 27 The Deceased, as well as conducting an import export business (which appears to have been ultimately unsuccessful), obtained employment as an administrative services officer with Centrelink. I have already recorded that three children were born of the marriage of Delia and the Deceased. They were Ralph Peter (who was born 1979 and who died in 1992), Richard (who was born in 1980, and is presently aged 28) and Roderick (who was born in 1985, and is presently aged 23). 28 At the time of her marriage to the Deceased Delia had no assets of any significance. 29 During the course of the marriage Delia was in employment as a collection officer with American Express. She resigned from that position when their eldest son was diagnosed with leukaemia in or about 1989. The Deceased continued in his employment with Centrelink. 30 At the time of their divorce no order was made in respect to property, neither party having any significant assets at that time. Delia retained custody of their two surviving children, there being an agreement as to access by the Deceased. 31 Delia resumed employment in 1994, as a cashier with Sydney Ferries, where she remained until March 1999. 32 It was Delia's evidence that at the present time her assets consist of a Hyundai Lantra 1999 sedan motor vehicle (having an estimated value of $5,000), a Weinstein piano (having an estimated value of $1,000) and furniture and appliances (having a total estimated value of $5,000). Delia set forth details of her liabilities, totalling about $10,124. 33 According to her affidavit evidence, Delia is presently permanently employed as a customer service consultant by ING. (She had previously been employed by that entity as a casual commissions officer.) She receives a net fortnightly income of $1,324. Delia set forth details of her average fortnightly expenses, totalling $1301 (the largest item being rent of $325 a fortnight). In addition, Delia's son Roderick, who is now aged 23 and is employed as a project manager by the Commonwealth Bank, presently resides with her, and pays an average amount of $595 a fortnight towards the household expenses of his mother and himself. 34 Delia suffers from certain health problems (including high blood pressure, high cholesterol, uric acid, increased thyroid function, lower back pain and sciatica), for which she said that she requires medication and treatment (costing her an average of $130 a fortnight). In her primary affidavit (sworn 19 March 2007) Delia had stated that she paid a total amount averaging about $395 a fortnight for such medication and treatment (including physiotherapy ($200), and massage ($120)). Also in that affidavit Delia had set forth details of her liabilities, at that time totalling $21,208. 35 It was Delia's evidence that her pressing needs are for the purchase of accommodation and for sufficient money to discharge her liabilities, for future medical costs, and for her living expenses after she ultimately retires or is retrenched from employment. She placed before the Court evidence of home units for sale in the Strathfield area (that being her preferred location) which would be suitable to her needs, in the range from $399,000 to $450,000. (I note, however, that it was ultimately submitted by Counsel for Delia that the Carnes Hill property should be sold and that Delia should receive one half of the net proceeds of that sale.) 36 It is also relevant to Delia's circumstances that twice, in 1992 and again in 2001, she became bankrupt, on each occasion upon her own petition. 37 It was asserted by Delia that, despite their divorce in 1993, she thereafter remained on good terms with the Deceased, and that at times a degree of affectionate friendship continued to obtain between them. She said that at times the Deceased, even after the divorce, provided her with some financial assistance for the support of their two surviving sons, whilst at other times she provided the Deceased with financial assistance. 38 It was Delia's evidence that after she resumed employment in 1994 the Deceased took the attitude that she should bring up their two sons without any financial assistance from him. She cited instances of the Deceased resiling from undertakings allegedly given to her regarding promised financial benefits for herself or for their sons. However, it was Delia's evidence that, nevertheless, the Deceased maintained a close and affectionate relationship with their two sons, especially during their schooldays and thereafter. 39 The claim of the Plaintiff must be approached in the light of the competing claims upon the testamentary bounty of the Deceased. The chief such competing claim is that of his widow Minoo Rouhani-Michael, who was the sole beneficiary under his will. 40 It will be appreciated that the competing claim of Jessica has now been recognised and has been resolved in consequence of the settlement of proceedings 3953 of 2007, brought on her behalf. Accordingly, the claim of Delia no longer needs to be considered in the light of the competing claim of Jessica. 41 Minoo was born at Tehran in Iran in 1952 and is now aged 57. She completed her schooling in Tehran, and was employed as a secretary for some years before migrating to Australia in 1974. She married in 1976. Of her marriage were born two children, who are now aged 30 and 27. Minoo and her first husband separated in November 1990 and divorced two years later. She received $64,712 by way of a Family Law settlement. Minoo had been employed from the time when she arrived in Australia. 42 Minoo met the Deceased through her employment in April 1995, when they were both employed by the Department of Social Security (later Centrelink). At the time when she married the Deceased Minoo was residing in rented accommodation at Quakers Hill with her two children. The Deceased in March 2002 underwent a radical prostatectomy. According to Minoo, she nursed the Deceased for a period of eight weeks after that surgical procedure. 43 Minoo moved into the Carnes Hill residence with the Deceased in 2002, and her two children also moved into residence with them at that time. 44 It was the evidence of Minoo that she and the Deceased had a loving and happy life together. Household improvements were effected to the Carnes Hill residence. It was Minoo's evidence that most of the cost of that work came from the property settlement of about $63,700 which she had received from her first husband. She had invested that sum in a term deposit. Minoo said that her children (who each paid board of $150 a week while residing with Minoo and the Deceased at Carnes Hill) also assisted in the refurbishment of that property. Minoo estimated that she had expended more than $60,400 in improvements and maintenance to the property. She said that the paving of the driveway alone cost her $12,000. 45 It was Minoo's evidence that the Deceased was unable to contribute to those expenses for the refurbishment of the residence because of the child care and maintenance payments of $1,100 a month which he was making in respect to his daughter Jessica. 46 Minoo also said that she paid for many of the Deceased's medical expenses, purchased new white goods (including a refrigerator and washing machine), and a king size bed and mattress (costing more than $2,000), and paid for the installation of air conditioning ($2,000). Since Minoo did not maintain a cheque account, it was her practice to withdraw money from her bank account in cash, which she then gave to the Deceased, who then wrote cheques on his own bank account. Minoo said that she also purchased groceries and other daily necessities, and that she paid off part of a credit card debt of the Deceased with Woolworths, upon which credit card there was still an indebtedness exceeding $8,000 at the time of his death. 47 Minoo gave evidence concerning various health problems from which she suffers, including adrenal adenoma, hyperthyroidism, high blood cholesterol levels, chronic neck, shoulder and arm problems, severe menopausal symptoms (which she said were exacerbated by the Deceased's sudden death) and osteoporosis. She also suffers frequent and severe migraines. In addition, Minoo has suffered an injury to her lower back, causing her to experience back pain. 48 Minoo presently works 26 hours a week over three days each week. Her fortnightly income totals $1,157, consisting of her salary of $1,042, together with interest on her investments of $115. According to Minoo, she is unable to work full-time, on account of her physical and emotional problems. 49 Minoo's assets consist of the following: Term deposit with ING $57,000 ING Private Equity Shares $2,000 Holden motor vehicle $11,000 Furniture $5,000 Jewellery $3,000 50 Minoo is indebted to her son in an amount of $17,520 (for assistance he gave her in paying mortgage instalments on the Carnes Hill property which she could not afford to meet after the death of the Deceased). Minoo said that due to financial hardship she had negotiated that she should make reduced mortgage repayments until the present proceedings are resolved. Minoo is also indebted in respect to a loan on the purchase of her motor car in an amount of $5,614, and has a credit card debt of $1,600. 51 Minoo gave evidence concerning her outgoings, in a total amount of $1,555 a fortnight. She said that those outgoings exceed her income, and that her son has been lending her about $400 a fortnight to make up the shortfall. 52 Minoo also said that she had paid almost $12,000 for a gravestone and plaque for the Deceased, for which she had not yet been reimbursed from his estate. 53 It was Minoo's evidence that she proposed to use whatever benefit she might receive from the estate of the Deceased in order to reduce the mortgage on the Carnes Hill property and to plan for her retirement. 54 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 55 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 56 Delia as a former spouse of the Deceased is an eligible person within paragraph (c) of the definition of that phrase contained in section 6 (1) of Family Provision Act. As such she has the standing to bring the present proceedings. 57 The other eligible persons in relation to the Deceased are his widow, Minoo (who is an eligible person within paragraph (a) of the foregoing definition); his three children (each of whom is an eligible person within paragraph (b) of the foregoing definition); his two other former spouses, Laure Phillipe and Blesilda Casal-Michael (each of whom is an eligible person within paragraph (c) of the foregoing definition); and three stepchildren (each of whom appears to be an eligible person within paragraph (d) of the foregoing definition). 58 Of those other eligible persons, only one, his daughter Jessica, has brought a claim against the estate of the Deceased. As I have already recorded, that claim has been settled and thus need not be taken into consideration as a competing claim upon the bounty of the Deceased when the present claim of Delia is being considered. No other eligible person apart from Minoo, the Deceased's widow, has placed before the Court evidence asserting against the claim of Delia a competing claim upon the testamentary bounty of the Deceased. 59 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 - 210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance.

60 The High Court in Singer v Berghouse (at 209 - 210) said that the determination of the first stage calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

61 It should at the outset be recognised that apart from the former matrimonial home of the Deceased and Minoo at Carnes Hill and apart from what may possibly be designated as notional estate of the Deceased (being the superannuation entitlements referred to in prayer 2 of the amended summons), the only assets in the estate available for distribution (other than the motor vehicle and the $200 which have already been distributed to Minoo), consisting of shares ($3,103) and cash in accounts ($385) will not be sufficient to meet even the costs of the Public Trustee's commission, or the agreed costs of Jessica, let alone the costs of the present proceedings (or even the costs of the Public Trustee alone). 62 The realities of the situation are that, if any order for provision is made in favour of the Plaintiff, then, unless superannuation entitlements be designated notional estate, the house property must be sold and the widow will be dispossessed of her residence. It should be recognised that even if the superannuation entitlements (totalling $132,292) be designated notional estate, they will not be sufficient to meet the costs of Delia and the Public Trustee of the present proceedings (totalling about $130,000) and the costs of Jessica (in the agreed amount of $30,000). 63 There was a very considerable quantity of evidence presented at the hearing concerning incidents during the matrimonial life of Delia and the Deceased and concerning the asserted gambling habits of Delia during the period of that marriage and thereafter. 64 It cannot be emphasised too strongly that it is the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant's financial and material circumstances. In the instant case, Delia has failed to do so. In her affidavit evidence she made no reference to the quarterly bonus which she regularly receives in her employment. Although that bonus varies in amount, it is sometimes $750, sometimes more and sometimes less. Delia in her oral evidence asserted that she had forgotten about the bonus payments, but acknowledged that they should have been included in her affidavit evidence. 65 Similarly, Delia in her original affidavit evidence, made no reference to her superannuation entitlement. Subsequently, in her most recent affidavit, she said that she had superannuation entitlements with ING Superannuation, in the sum of $2,832.76. Under cross-examination it emerged, however, that in May 2008, Delia's superannuation entitlement had reached almost $7,400. She said that she had withdrawn a significant part of that sum when she attained the age of 55 (which, upon my calculation, would have been in 2005). 66 Delia was also cross-examined concerning the fact that she had been made bankrupt on two occasions, upon her own petition, in 1992 and in 2001. On the second occasion, in 2001, she had stated in her petition that she had a State superannuation entitlement of $7,000, and a Commonwealth superannuation entitlement in excess of $11,000. 67 Delia was also cross-examined concerning information which she had provided to the Official Receiver in Bankruptcy, in which she had said, amongst other things, that she had lost $30,000 on poker machines. However, in her oral evidence in the present proceedings, Delia asserted that that statement made to the Official Receiver was, in fact, false and that she had subsequently informed the Official Receiver of the falsity of that statement concerning gambling losses. 68 I considered Delia to be unreliable in her affidavit evidence concerning her financial circumstances, especially regarding the statement of affairs in each of her bankruptcies; regarding the purchase of various motor vehicles; regarding a loan application to City Finance in March 2007 (in which she made no reference to liabilities in excess of $21,000, which she now asserts in her present claim). 69 Other instances of the unreliability of Delia as a witness related to assertions in her affidavit evidence of amounts of $200 a fortnight (or $130 a fortnight) being (or having been) expended on physiotherapy treatment. In December 2002 Delia appeared in proceedings before the Residential Tenancy Tribunal. She informed the Tribunal that her mother had died in 2002. Under cross-examination in the present proceedings, Delia admitted that that statement was false. 70 In the absence of precise and reliable evidence concerning her present financial and material circumstances, it is difficult, if not impossible, for the Court to conclude that she has been left without adequate provision for her proper maintenance. It will be appreciated that it is for Delia to establish that she has been so left. 71 Further, it remains equally difficult for the Court to be satisfied of those factors which Delia asserts warrant the making of the present application (as required by section 9(1) of the Act), while her present financial and material circumstances are unclear, and while so much of her evidence has been shown to be unreliable or incorrect. 72 In regard to Delia's evidence concerning the nature of her relationship with the Deceased and concerning various incidents during their married life and thereafter, including the asserted gambling activities of Delia, it is appropriate to bear in mind the following salutary admonition of Windeyer J, in the High Court of Australia, in Blore v Lang (1960) 104 CLR 124 at 137, The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case.

73 It should also here be emphasised that an order for provision is not made as a reward for services and good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant. 74 Neither the Plaintiff nor Minoo can be regarded as being in particularly affluent financial circumstances. Each has a modest income, and each is dependent upon support from at least one of her children. The significant difference is that, whilst Minoo under the terms of the will receives the house property absolutely (but upon which she must meet the mortgage payments), Delia resides in rented accommodation. Each of those ladies suffers health problems. Each is of an equivalent age, and is rightly concerned for security in her future. 75 To the extent that the first stage in the foregoing two-stage process identified by the High Court of Australia in Singer v Berghouse requires a consideration of the competing claim of Minoo (see Foley v Ellis [2008] NSWCA 288, Diver v Neal [2009] NSWCA 54), there is, apart from the widow's entitlement to ownership of her residence, little difference between the respective financial and material circumstances of these two ladies. 76 I am not satisfied, that, in consequence in the absence of any provision being made for her by the will of the Deceased, Delia has been left without adequate provision for her proper maintenance. 77 That conclusion is of itself determinative of Delia's claim. 78 However, even if (contrary to the conclusion which I have just expressed) Delia were to establish that she had been left without adequate provision for her proper maintenance, it would be necessary for her to establish, pursuant to section 9 (1) of the Family Provision Act, that there are factors which warrant the making of her present application. 79 Those factors were described by McLelland J (as he then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being, factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased.

80 In this regard, Delia relies upon the fact that she was married to the Deceased for fourteen years (although, they were together effectively for only thirteen years) and bore him three sons. During that period Delia fulfilled the roles of wife, mother, and homemaker, and especially had the fulltime care of their eldest son during his terminal illness. Further, Delia relies upon the fact that at the divorce, she received no property settlement, and thereafter she had the entire burden of caring for their surviving children without maintenance or significant financial support from the Deceased. 81 Further, it was the Deceased who received the entire death benefit of $41,000, paid as a result of their eldest son's death. Despite his alleged promise to do so, that money was never shared with Delia. She said that in 2000 she paid $5000 to the Deceased at his request, and that amount was never repaid. Delia also relies upon alleged promises made by the Deceased to Delia and their two surviving children that he would provide for those children on his death, but by that he failed to do so. 82 Additionally, the asserted good relationship obtaining between Delia and the Deceased until his death, and the fact that Delia has never remarried or entered into a relationship with another man, as well as her present financial and material circumstances are also relied upon as factors warranting the making of the present application. 83 I have already referred to the disputed evidence and allegations regarding the nature of the relationship between Delia and the Deceased and regarding various incidents during their married life and thereafter. 84 Here the contest is essentially between, on the one hand, a former wife of the Deceased, whose marriage (which for practical purposes lasted about thirteen years) formally terminated thirteen years before his death, and for practical purposes had come to an end fourteen years before his death; and, on the other hand, his widow, married to and living with the Deceased at the time of his death, whose marriage (happy and loving) was for a duration of somewhat less than four years, but whose claim upon his bounty was recognised by the Deceased in naming her his sole beneficiary, and who had made significant financial and material contributions to the improvement of the Deceased's residence and who had nursed him during his periods of ill health. 85 I do not disregard the fact that after their separation Delia had the responsibility for bringing up the two surviving children born to the marriage of herself and the Deceased and that no property settlement was made in her favour upon their divorce. That was because the Deceased did not then have any assets which might have been the subject of such an order. 86 In these circumstances, I am not persuaded that the factors relied upon by Delia would give her the status of a person who would generally be regarded as a natural object of testamentary recognition by the Deceased. In the absence of such factors, the Court is precluded from proceeding with the determination of the application, and must dismiss the claim of the Plaintiff. 87 But, even if (contrary to the conclusion which I have just expressed) I were to be satisfied that such factors did exist, and even if (contrary to my earlier conclusion) I were to be satisfied that by reason of the absence of any provision for her in the will of the Deceased, Delia had been left without adequate provision for her proper maintenance, nevertheless, I consider that the competing claim of Minoo is such as to defeat any entitlement to an order for provision which Delia might otherwise have established. 88 What Delia is seeking is, in effect that she be enabled to acquire ownership of a residence, with the concomitant that Minoo be deprived of ownership of her residence. If that were to occur, then there is little possibility that Minoo, upon her present income, would be enabled to purchase some other residence. It follows therefore, that Minoo would be placed in the position of living in rented accommodation for the rest of her life. 89 I am not satisfied that in this case the interests of justice would require that the widow (albeit after a relatively short marriage) should be deprived of her home (to the improvement whereof she has made significant financial and material contributions), in order to enable a former wife of the Deceased to purchase a residence. 90 Even if (contrary to the various conclusions which I have already expressed as defeating Delia's claim) I were satisfied that Delia was entitled to order for provision out of the estate of the Deceased, such provision could only be made by the sale of the matrimonial home of the widow. As I have stated I do not consider that the sale of Minoo's residence would accord with the interests of justice. To exchange the positions of Delia and that of Minoo regarding their respective residences, would not be an appropriate exercise of the Court's discretion in this case. 91 It follows therefore, that the claim of Delia will be dismissed. 92 I have not heard any submissions concerning costs, and Counsel for Delia at the hearing requested that he have an opportunity to make such submissions. Accordingly, such an opportunity will be given to Counsel. 93 I make the following orders: 1. I order that the proceedings be dismissed.

2. The exhibits may be returned. 3. I stand over the proceedings to a date to be fixed, for submissions as to costs. **********

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