Parkinson v CrawfordCrawford v Crawford

Supreme Court of NSW|2001-09-03|Before: Mr J, Holland J, Waddell CJ, Needham J, Young J

CITATION : Parkinson v CrawfordCrawford v Crawford [2001] NSWSC 879 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4268/99; 3756/99 HEARING DATE(S) : 11, 12 July, 3 September 2001 JUDGMENT DATE : 9 October 2001

PARTIES : Paul William Parkinson v Philip David Crawford Dulcie Claire Crawford v Philip David Crawford JUDGMENT OF : Master Macready at 1

Mr M. Willmott for Dulcie Crawford COUNSEL : Mr J. Wilson for Paul Parkinson Mr G. Leggatt for defendants Mullane & Lindsay for Dulcie Crawford SOLICITORS : Attwaters for Paul Parkinson Clarke & Kann, Brisbane for defendants CATCHWORDS : Family Provision. Claim by a widow and stepson. Consideration of the claims of the widow for provision and whether such claim can properly be met by part of the appropriate provision being by way of life estate. Orders made for provision with part of the property being held subject to a life estate. Churton v Christian (1988) 13 NSWLR 241 Brown v Faggoter, 13 November 1998 Singer v Berghouse (1994) 181 CLR 201 Crisp v Burns Philp Trustee Co Ltd , Holland J 18 December 1979; Banks v Hourigan , Waddell CJ in Eq, 2 March 1989 CASES CITED : Cameron v Hills , Needham J, 26 October 1989. White v Barron (1979-1980) 144 CLR 431 Warladge v Doddridge (1957) 97 CLR 1 Court v Hunt, 14 Sept 1987, unreported, Young J Golosky & Anor v Golosky , 5 October 1998, unreported Court of Appeal Permanent Trustee v Fraser 36 NSWLR 24 Salmon v Blackford, 18 February 1997, Court of Appeal DECISION : Paragraph 52

3756/1999 DULCIE CLAIRE CRAWFORD v PHILLIP DAVID CRAWFORD AND ANOR 4268/1999 PAUL WILLIAM PARKINSON v PHILLIP DAVID CRAWFORD AND ANOR

JUDGMENT 1 MASTER: This is the hearing of two applications under the Family Provision Act in respect of the late David Crawford who died on 14 January 1999. I have ordered that the evidence in one matter be evidence in the other and that the matters be heard together. The plaintiff in matter 4268 of 1999 is the stepson of the deceased. The plaintiff in matter 3756 of 1999 is the deceased's second wife. The defendants are two of the deceased's sons by his first marriage. 2 The deceased made his last will on1 December 1992 and a codicil on 22 June 1998. Under that will his wife received the following::- (a) Personal effects and furniture. (b) A life interest in all the deceased's real estate determinable on remarriage or failure to maintain. (c) A life interest in property trusts purchased after 27 April 1998. 3 Under the deceased's will his five sons by his first marriage received the income from his shareholdings for the life of his widow and all the interests in remainder. The deceased's stepson received no interest under the will. There was one small legacy of $1,000 to a grand daughter. 4 The evidence discloses conversations in which the deceased indicated his reasons for excluding his stepson, Paul. For instance in the affidavit of Philip David Crawford sworn 30 January 2001 in paragraph 8 the deceased, when discussing the reasons for his will, said the following:- "I have appointed you and Tony as executors under my Will. Its terms are a little out of the ordinary because I have not left my whole estate to Clare. The reason for this is that I wanted to make sure my Will is fair to everyone. I have ensured that Clare will have enough money to live on, in the manner in which she is accustomed. Clare will receive income from assets left on trust for her. I want to make sure that Paul cannot squander the assets I leave for Clare. I was also concerned that whatever I leave for Clare, you and your brothers would not benefit from as Paul would inherit it all upon Clare's death. Instead, you and your brothers will receive those assets when Clare dies." 5 The present estate of the deceased would appear to comprise as follows:- Assets 6 78 Roslyn Avenue, Charlestown (matrimonial home) $160,000 Four flats at 32 Moolcha Street, Mayfield 320,000

Half interest in 1/6 William Street, Tweed Heads (owned with the widow) 34,000

Half interest in Palm Beach, Queensland (owned with the widow) 55,000

Hyundai Excel and Sigma which passed to the widow Nil

Property Trusts - widow's life estate account 38,997.03

Citibank 29,007.23 Westpac Banking Loan account Roslyn Avenue 72,903.22 Loan account - widow 4,604.16

7 Costs have been incurred in the estate. The defendant's costs are estimated at $90,500 part of which have been included in the assessment of the total balance in the estate referred to above. There is a sum of $37,000 which has not yet been charged. For the plaintiff, widow her costs are estimated at $55,000 and those for the plaintiff, stepson, $30,000. The total of these figures is $122,000. In addition there is another amount which has to be paid from the estate. That is the widow's entitlement to income that has been accrued since the date of death. This amount has been agreed, after detailed investigation by the accountants, at $79,000. If one takes this amount, and assuming the plaintiffs are successful, the amount of the costs which I have referred to above one ends up with a net estate of $649,433.72. 8 I turn to deal with a little of the history of the matter. 9 Philip Crawford one of the defendants was born on 13 October 1951. His brother, Anthony, was born on 23 April 1957. The son, David was born on 21 July 1959 and the Terence was born on 2 November 1961. Paul William Parkinson, the deceased's stepson, was born on 25 February 1967. Paul's father died about two months before Paul was born. In 1974, having met the deceased some time earlier, the widow, Mrs Crawford and her son Paul commenced living with the deceased. Prior to that time the deceased had separated from his wife to whom he had been married for many years. The children, being the five boys of the deceased and his first wife, continued living either on their own or with their mother. 10 The plaintiff Paul Parkinson left school in 1982, obtained an apprenticeship and obtained a Boiler Makers' trade certificate in 1986. Eventually he married and had two children. In 1996 the plaintiff, Paul Parkinson, separated from his wife and he returned to live with his mother and the deceased. The deceased died on 14 January 1999 and probate was granted on 27 July 1999 and these proceedings were commenced within time. In 1999 the plaintiff, Paul Parkinson, reconciled with his wife and he and his wife and their two children still continue to live with the widow in the property at 78 Roslyn Avenue, Charlestown. This was the matrimonial home for many of the later years of the deceased's life. 11 It is clear that Paul Parkinson is an eligible person. He was dependent upon the deceased from an early age and he was a part of the household. However it is necessary under s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts 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.'" 12 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."

13 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 given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. 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. 14 Considering the matter under the traditional approach Paul was 8 years old when he and his mother started living with the deceased. It is clear from the evidence that the deceased treated Paul as his own son. He encouraged him with his soccer, educated him and took an interest in his career. In the ordinary case I have no doubt there would be factors warranting and accordingly, I will continue to see whether his claim is likely to be successful and thus whether there are factors warranting on the second basis.

In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 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 or 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."

15 I turn to deal with the situation of the widow. She is single and is 57 years of age. At present she has a life expectancy of 26.45 years. 16 It is apparent from the evidence in this case that the deceased was careful to ensure that there were joint assets which were built up over the period of the relationship. A number of these were held by the plaintiff, widow, at the date of death. Her assets are now as follows:- 1 Elm Street, Cardiff South $80,000 less mortgage $32,938 $47,062 Half of Palm Beach, Queensland $55,000 less mortgage of $9,088 ½ $4,604 $50,396

20 Fairchild Street, Raymond Terrace $120,000 less mortgage $63,563 $56,437

17 So far as income is concerned it is apparent that from her own properties and investments, after paying out mortgages by way of interest, the plaintiff, widow, receives $8,898 per annum. She has monthly expenses of $2,316.85 per week totalling $27,802 per annum. Clearly she has been living on capital for the two and a half years since the date of the death and has had to redeem some $40,000 of investments to continue to live. The plaintiff, Mrs Crawford, does have some medical problems. She suffers from diabetes although it is able to controlled. She has a congenital loss of one arm and has lived with that disability all her life. She has pain in her knees and she has some problems with her breasts which at this stage do not seem to be a matter for concern. She has some hypertension and occasionally suffers from anxiety and depression. Apart from assisting the deceased in a substantial way, she has not worked during the relationship. It is clear that she had a good relationship with the deceased. They commenced living together in 1975 and married in 1977. It was a loving relationship and it is obvious that they cared for each other. 18 It is necessary to see how the plaintiff, widow, asserts that she contributed to build up the estate of the deceased as this is an important part of the case. 19 When the deceased and the plaintiff, widow, first met the deceased was working for a real estate agent. It is apparent that for many years the deceased and his wife bought and sold a large number of properties and this was how the estate was built up. The deceased also developed other properties with friends. In the course of those matters the plaintiff, widow, would assist in the renovation and cleaning of the properties. Invariably the properties were purchased in a rundown condition and they required work in order to let them. In addition to this work the plaintiff cleaned properties after tenants moved out. She was also involved in interviewing prospective tenants and collection of rents up until about 1989. She continued with her cleaning of the properties up until 1998. Although the plaintiff did the work that I have described it is clear that it was the deceased who chose the properties although he showed the plaintiff them before they were purchased. The deceased alone arranged the finance and decided when to buy and sell. After the deceased retired he decided to sell some of the older properties and he then started investing into trusts and shares as he thought it might produce a better return. 20 It is also, of course, necessary to see how the plaintiff says she has been left without proper and adequate provision for her maintenance, education and advancement in life. In this respect she advances the following matters:-

(a) Repair to the Charlestown property of $41,710. (b) Furniture and clothes $28,134.

(e) The provision to her of an absolute interest in the matrimonial home at Charlestown valued at $160,000.

21 In addition the plaintiff also submits she should have further funds to cover the shortfall in income which she would receive and a sum for contingencies of life. 22 I turn to the situation of the plaintiff, Paul. He is 34 years of age, married with three children aged between one and eight years. He has few assets being furniture of $1,000, shares of $340 and a motor bike of $1,200. He has a debt of $12,485 for Austudy. That debt can be reduced to $7,129 if it is repaid this year. He and his wife presently subsist on a Newstart and child allowance which total $1,012 per fortnight. Their expenses substantially consume this amount. These expenses do not, of course, include any rent as they live with Paul's mother, Mrs Crawford. So far as Paul's health is concerned unfortunately he has started to have difficulties with arthritis and joint pain. There is unchallenged evidence from Dr Mathers, his Rheumatologist, as to his treatment which commenced in about August 2000. He does have seronegative rheumatoid arthritis and he has been given a number of different treatments. The doctor concluded his report with these comments:- "He has partially responded to conservative management. Furthermore, there has been improvement following the introduction of disease-modifying drugs but he remains in a substantial amount of discomfort particularly around the ankles and feet. The ultimate prognosis of seronegative rheumatoid arthritis is difficult to predict. A significant percentage of patients, however, do proceed to long-term disability and deformity. At this stage I have certified Mr Parkinson unfit for any form of employment. That remains in place until July 2001." 23 Paul was still unfit for work as at the conclusion of the hearing on 3 September 2001. He hopes that he will be able to return to employment but at this stage nobody knows when this will occur.

Contributions to the Estate 24 Paul gave evidence that from about the age of ten he became involved in attending rental properties and helping the deceased with work at the properties. He gave detailed evidence of estimates of times that he spent, for instance, in mowing lawns at different places and work done in assisting in the renovation of various properties. On the plaintiff's estimate this was a substantial involvement. This was attacked by the defendants in their evidence and there is some merit in what they said. However, there is a good deal of independent evidence from neighbours and other people who corroborated the plaintiff, Paul, and the fact that he was there at the various properties doing work and mowing lawns from time to time. In general it seems to me, particularly bearing in mind the nature of the deceased and the way he treated his other sons, that it is very likely that he had Paul helping him a lot in the renovation of properties. Paul might not have done everything to the deceased's liking and the deceased may have been unhappy with the way he did some things but I think that at least, on Paul's part, there was a substantial contribution to the renovation effort. 25 So far as the deceased's relationship with Paul is concerned it is apparent that the deceased took a great interest in him as a child when he first met the person who was later to become his second wife. He would take Paul to soccer and would encourage him in that sport. Later on he became a little more critical of Paul and tended to make comments to his other children that Paul was a bit of a "no hoper". Clearly he was concerned that he would borrow money from his mother and not repay it. Mrs Crawford denied there was any great substance in these matters. 26 So far as the way in which Paul says that he has been left without adequate and proper provision for his maintenance, education and support there is little evidence in this regard. It was expressed in submissions as a need to repay his Austudy debt and to have some fund to help him cope until he can return to work. At the moment he and his family live with his mother and pay $75 per week board. 27 I turn to deal to deal with others having a claim on the bounty of the deceased and in this case they are the five children by his first marriage. 28 Philip David Crawford, the eldest son, gave no evidence of his personal situation. He gave evidence in relation to a number of factual matters but in the absence of any evidence of his financial situation the Court can conclude that he does not want that taken into account by the Court when it assesses the claims which are now made. 29 Gary James Crawford gave no evidence in the case at all. Anthony Samuel Crawford gave no evidence of his personal financial situation and accordingly the Court can disregard it. Terrence Michael Crawford also gave no evidence of his personal financial situation. However, he did give some insight into the way in which the deceased sought to enforce a sound work ethic into all his sons by his first marriage. He apparently operated a milk run from 1967 until the 1980s. Three of his brothers, Philip, Gary and Tony worked on that milk run each of them taking off some years to run it. In particular the three brothers also did work in their trade as electricians for the deceased on his house. Although they never ran the whole milk run both Peter and Martin regularly worked on it throughout their childhood and their late teens. It is clear that the deceased felt that it was important that his children should develop a sound work ethic and this is probably the reason why he became disappointed with his stepson Paul's efforts. 30 David Peter Crawford is 41 years of age. He has a defacto partner and a child who are both dependent upon him. He has a house worth $80,000 subject to a mortgage of $38,000. His car is worth $400 and his furniture is worth $3,000. He is a primary school teacher earning $1,542 per fortnight. It is clear that he had a good relationship with his father and was close to him while he was growing up. 31 There was also evidence from Martin Crawford that he had a good working relationship with his father and would do electrical work on all the properties which were renovated. He was paid an appropriate fee for that work by the deceased. 32 The defendants strenuously oppose the plaintiffs' claims and in submissions they advanced various reasons why both plaintiffs' claims should be dismissed. The claim of the plaintiff, Mrs Crawford, is to receive sums to cover the following:-

Particular needs for repairs etc. $109,350 2. A sum for provision of income $290,000

Matrimonial home at Charlestown absolutely valued at $160,000

Transfer of the title of the estate's half interest in Palm Beach and the whole of the deceased's interest in the property at Moolcha Street, Mayfield to provide a fund for contingences. 33 The defendants' attitude to Paul Parkinson's claim is that it should be dismissed on the basis that his Austudy debt is capable of repayment and it is being repaid at the moment. It was submitted that he has appropriate trade qualifications, that he has had reasonable eduction and that the medical evidence only suggests he is unfit for work until the present time. In my view that severely understates Paul's claim although the medical evidence does not say how far into the future he will be unfit for work. Clearly the nature of the diagnosis poses a real possibility about his future ability to work. However, the total absence of quantification of this aspect of the claim means that all that can be done is to give some small legacy which will enable him to repay his Austudy debt which would be to his benefit and also to have some fund to tide him over for the next year. 34 The defendants' attitude to the claim of the plaintiff, Mrs Crawford, is that, apart from a minor matter, appropriate provision has been made by the deceased. That minor matter is that the defendants would concede that the life estate should not be restricted to widowhood and that some provision allowing flexibility in respect of the principal residence should be built into that life estate. The defendants in their submissions made the point that the deceased during his lifetime had engaged in a very careful estate plan which was designed to give his wife some security and flexibility. The security came from the provision during her lifetime of the properties which the plaintiff, Mrs Crawford, now owns. So far as income is concerned, they point to the fact that Mrs Crawford has estimated her income needs of some $2,300 per month. It was submitted that this would provide an adequate lifestyle which is better than the somewhat frugal lifestyle which the deceased and his widow enjoyed during their life together. Under the will the plaintiff is entitled to the income from a number of properties. Given the history of the estate properties over recent times since the date of death it is apparent that the net income per annum from the whole of the real estate (not just the half shares) under the life estate would be approximately $28,000 from which should be deducted about $8,000 for the costs of servicing mortgages on the various properties. At present Mrs Crawford receives gross income from Fairchild Avenue of $11,616, Roslyn Avenue of $3,900 and Elm Street, $6,684 per annum making a total of approximately $22,200. After allowing for rates of some $7,000 it was suggested that this would provide an income stream of some $35,200 which after tax would be adequate to meet her annual expenses of $27,600. 35 So far as accommodation is concerned the defendants submitted that Mrs Crawford had in fact a choice of living between three places. She could live at Roslyn Avenue, Elm Street or Fairchild Avenue, Raymond Terrace and rent whichever properties were not occupied. 36 Central to the defendants' submissions were a rejection of the notion that the widow was entitled to an absolute interest in sufficient assets to provide her with accommodation, an income stream and to provide a fund for contingencies. It is this aspect of the submissions to which I will now turn. 37 In the 1970s and 1980s there are a number of decisions of single Judges of this Court where they have held that a life interest with particular attributes were appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd , Holland J 18 December 1979; Banks v Hourigan , Waddell CJ in Eq, 2 March 1989; Cameron v Hills , Needham J, 26 October 1989.) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1979-1980) 144 CLR 431 where at p 444 the Mason J said:- "A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy." 38 A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Warladge v Doddridge (1957) 97 CLR 1, that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was also one of the majority, in White v Barron at pp 438-440 went to some length to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application. 39 By the late 1980s other Judges in this Division were taking a slightly different view. For instance, in Court v Hunt, 14 September 1987, unreported, Young J said:- "Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge." 40 His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. 41 After talking about the evidence necessary, his Honour went on to say:- "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non- capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow." 42 More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky , 5 October 1998, unreported, the Court summarised the proper provision for widows (and thus the plaintiff in these proceedings) in the following terms:- "In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:

(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron & Anor , above, 458; Hunter , above, 576.

(b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.

(c) Consideration of other cases must be conducted with circumspection because of the inescapable details of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse ( or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70.

(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA.

(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant ; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop (deceased) (1987) 8 NSWLR 679 (SC); Churton v Christian & Ors (1988) 13 NSWLR 241 (CA) 252." 43 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott , unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. 44 In Permanent Trustee v Fraser 36 NSWLR 24 at p 47, Sheller JA had the following to say:- "Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life interest in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation. See Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has a greater flexibility as well as greater security." 45 In Salmon v Blackford, 18 February 1997, the Court of Appeal was dealing with a case where the trial Judge had given a fee simple to the deceased widow. Sheller JA said:- "The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case. The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty." 46 This seems to indicate a different approach to that referred to by Mason J in White v Barron. 47 In the present case there are a number of factors to be taken into account.

48 So far as accommodation is concerned the deceased' widow made it perfectly plain she wished to continue living in the Charlestown property and she is entitled to do so as it was her matrimonial home for many years. It is important, bearing in mind the need for flexibility in accommodation that might arise in the future, that she have the fee simple of that property. It is also important that she should have a number of other capital assets which will give her some flexibility in this regard and also to provide something towards contingencies. She already has shares having a value of $26,069. 49 The estate is sufficient so that it can provide for the immediate cash needs in the sum of $109,000 to which I have referred above. If, as I will suggest later, she is to receive income from the real estate it is important that that real estate be maintained in a proper state so that she does not encounter any untoward maintenance expenses. It is clear that although she will not be able to receive the pension given her assets she will need an income stream from assets in order to adequately support herself. It is fairly clear that if she had the income stream from her own real estate and also the estate real estate that she would be able to receive sufficient to meet her present anticipated expenditure. 50 It is perfectly clear from the evidence that the deceased intended to benefit the children of his first marriage. They do not have an immediate need but they do have a claim on his bounty arising from the long period of contact and the inter-reaction the deceased had with his children during their upbringing and early years. The deceased's desire can be accommodated in part by provision of a life estate over some part of the realty so that the children might take some assets on the death of the deceased's widow. This may be appropriate in the circumstances of this particular case provided that there are sufficient assets held by the widow to give her flexibility with her investments. She already has some shares worth about $26,069 which gives her a small fund for contingencies and the income from this I have not taken into account when assessing whether the real estate income would be sufficient for her. 51 I have earlier talked of the need for some small legacy to the plaintiff, Paul Parkinson and I think that $35,000 is appropriate in this regard. An order giving the whole of the estate to the plaintiff, Mrs Crawford, subject to a legacy in favour of Paul for $35,000 and retaining an interest in remainder for the children of the first marriage of the deceased in the property at 32 Moolcha Street, Mayfield will achieve what is necessary for the widow. Such an order, which will include her income entitlements from the estate, will be sufficient to meet her immediate needs and provide a cash surplus of about $10,000 assuming she keeps the existing mortgages. It will also give her the full ownership of a number of properties having a net worth of about $345,000 and thus, if she wishes, to vary her mix of investments she can sell, without consultation with the trustees, and make other investments. Retaining the property at Mayfield as one for the life estate will give the children of the first marriage some interest on the death of the widow. The property was converted into four flats in 1979 and provides a satisfactory stream of real estate income for the widow. Only minimal contact with the trustees will be required in respect of the management of Moolcha Street, Mayfield. 52 Accordingly, the orders I make are as follows:-

In lieu of the provisions in clauses 5, 6 and 7 of will of the deceased and the provisions of clauses 6A and 6B of the codicil the following provisions shall take effect. (a) A legacy of $35,000 for Paul William Parkinson. (b) The property 32 Moolcha Street, Mayfield be held by the trustees upon trust to pay and apply the income therefrom to Dulcie Claire Crawford for her lifetime she paying all rates and taxes levied on the property, insurance premiums and she keeping the property in a proper state of repair and maintenance and upon the death of Dulcie Claire Crawford equally to such of Phillip David Crawford, Gary James Crawford, Anthony Samuel Crawford, David Peter Crawford and Terence Michael Crawford as shall be alive at the death of Dulcie Claire Crawford.

I order the plaintiffs' costs on a party and party basis and the defendants' costs on an indemnity basis be paid or retained out of the estate of the deceased.

Interest shall run on the legacy in favour of Paul William Parkinson if not paid within three months of today's date at the rates provided for under the Wills and Probate Administration Act as from the expiration that period of three months.

Last Modified: 10/09/2001 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.

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Judgment (35 paragraphs)

Cases Cited (5)