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[2001] WASC 342
plaintiff. Application allowed. The Court ruled that Pereira should receive $78,309, representing one-fourth of the agreed estate value. It ruled that the remaining estate should be distributed under the...
Pereira claimed provision from the estate of her former partner, who died intestate. His lawful wife and children received distributions under the intestacy rules, which did not provide for Pereira. The judge found that Pereira met the statutory criteria for a de facto widow, including partial financial maintenance and a special moral responsibility arising from the relationship. The judge also found the intestacy distribution inadequate for her, despite her ownership of a home and employment. The Court ruled that she receive $78,309, with the remaining estate distributed under the usual intestacy rules. The judgment left costs and the formal implementation of its ruling for further consideration.
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Hasluck J considered an application by Maria Elizabeth Pereira for provision from the intestate estate of Gordon Paul Patrick under the Inheritance (Family and Dependants Provision) Act 1972 (WA). Patrick died on 10 May 1999, aged 44. He had married Andrea Patrick in 1977, and they separated in December 1995. They had four children. Pereira contended that she was Patrick’s de facto widow and that the intestacy distribution left her without adequate provision ([1]–[2], [12]–[14]).
1 cited instrument linked from this judgment.
The judge recorded an agreed estate value of $313,235.33 at the hearing. Before the hearing, administrators had distributed $196,266: $147,266 to Andrea Patrick and $13,000 to each of the four children ([3]–[5]). The estate included superannuation and death-benefit insurance entitlements exceeding $200,000, alongside other assets ([75]).
Pereira said she met Patrick in May 1996 and that he began living at her home in September 1996. Patrick moved to Kalgoorlie for work in December 1998, living there during rostered work periods and returning to Pereira’s home when his work allowed. Pereira explained that she did not move to Kalgoorlie because her daughter was pregnant and needed support ([15]–[21]). She described an intimate relationship, shared future plans, a joint savings account, and Patrick’s regular contributions to household expenses. She also said she did domestic work for him and that he had encouraged her to take time away from work ([21]–[25]).
The evidence included accounts from witnesses who had seen the couple together or at Pereira’s home. The defendants disputed that Pereira and Patrick had lived in a de facto relationship of the kind alleged. Some employment and financial records used other addresses for Patrick, but his transfer record listed Raby Close in Cooloongup, and Pereira produced mail addressed to him at her home ([31]–[45]). The judge accepted Pereira’s account of the relationship and found that the Kalgoorlie posting did not end it ([57]–[60]).
The Court found that Pereira had standing under s 7(1)(f), and that the intestacy distribution made inadequate provision for her. It ruled that she receive $78,309, one-fourth of the agreed estate value. The balance was to be distributed according to intestacy. Costs and the terms of orders implementing the ruling remained to be addressed ([61], [78], [88]–[92]).
The threshold question was not simply whether Pereira and Patrick had lived together. Section 7(1)(f) required a claimant to be a de facto widow who was wholly or partly maintained by the deceased at death, ordinarily a member of his household, and someone for whom he had a special moral responsibility to make provision ([7]). The judge treated those requirements as distinct and considered the relationship as a whole ([48]–[56]).
On the relationship evidence, the judge found mutual society and affection, a sexual relationship, recognition of something akin to marriage in public and private, and some sharing of material resources. The joint account and arrangements about furniture supported the finding of shared resources. Patrick’s regular household contributions supported the finding that Pereira was partly maintained by him at death ([57]–[58]).
The length and circumstances of the relationship mattered to special moral responsibility. It had lasted about three years, including two years of daily cohabitation and further intermittent cohabitation after Patrick moved to Kalgoorlie. The judge accepted Pereira’s explanation for not joining him there. The posting for work did not, in the judge’s view, end the intimate relationship or change the fact that they were ordinarily members of the household established at her home ([59]). The judge also considered Pereira’s continued loyalty to Patrick and her foregoing other social opportunities relevant to the responsibility arising from the relationship ([59]–[61]).
The next question was adequacy of provision. Under s 6, the judge treated this as an objective assessment at the date of death. It did not turn on whether the claimant could prove acute need. Relevant considerations included the claimant’s circumstances, the size and nature of the estate, the relationship, and the claims of other people with legitimate interests in the estate ([63], [66]–[71]).
The intestacy rules gave the lawful widow the first $50,000 and one-third of the balance, with the children receiving the remaining two-thirds. They made no provision for a de facto widow ([9], [73]). Pereira owned her home subject to a comparatively small mortgage and had paid employment, so the judge did not describe her as being in acute need. But her position was modest, depended on ongoing employment, and offered little prospect of advancement. She had also been partly dependent on Patrick ([76]–[78]). The estate was substantial; the judge also considered the wife’s and children’s circumstances and claims ([75], [77], [82]).
For the amount of relief, the judge considered circumstances at the time of determination, including Pereira’s home, future needs, education and the strength of the other beneficiaries’ claims. The judge stressed that the Court should interfere only to the extent necessary to make proper provision ([69], [72], [78]–[80]). Although counsel for both sides framed the issue as a contest between Pereira and Andrea Patrick, the judge considered that the statutory scheme required attention to the interests of all beneficiaries, with any burden ordinarily borne in proportion to their interests ([83]–[84]).
The judge settled on one-fourth of the agreed estate value, $78,309. The reasons connected that sum to discharging Pereira’s mortgage, carrying out home repairs and improvements, reducing her need for regular employment to some extent, and allowing her to pursue further education ([87]–[89]).
The judgment describes the legal framework applied in Western Australia in 2001. The intestacy rules under the Administration Act 1903 (WA) provided for the deceased’s lawful widow and children, but not a de facto widow. The Inheritance Act offered a separate route for a person within its specified classes to seek provision, subject to the statutory conditions ([7], [9], [63]).
For a de facto widow’s eligibility, Hasluck J drew on authorities addressing the elements of a de facto relationship and the additional special-moral-responsibility requirement. The judgment explains that the relationship inquiry should consider a composite picture rather than isolating factors and assigning each a fixed weight ([49]–[56]). In this case, the composite evidence included cohabitation, affection, sexual relationship, public and private recognition, shared resources, financial support, duration and sacrifice ([57]–[60]).
For adequacy, the judgment distinguishes two stages. First, the Court decides objectively whether the disposition was inadequate for the claimant’s proper maintenance, support, education or advancement in life, assessed at death. Second, if that threshold is met, the Court decides what provision to order, considering circumstances at the time of determination ([66]–[70]). The judgment says that need is not a prerequisite to answering the first question ([70]).
The “before” position in this case was the intestacy distribution, under which Pereira received nothing. The “after” position created by the ruling was a provision of $78,309 for her, with the balance to pass under the intestacy rules ([73]–[74], [88]–[89]). This is a description of the ruling in this case, not a statement about the current state of Western Australian succession law. The supplied judgment does not set out subsequent legislative amendments or later judicial treatment.
At [49], the judgment explains the qualities the statutory description of “de facto widow” was intended to capture, subject to the Act’s specific conditions. In plain English, living together in a relationship resembling marriage was not enough by itself: the additional statutory requirements still had to be shown.
At [55], the Court says that the relationship inquiry considers factors such as living together, mutual affection and care, mutual society and protection, sexual relations, recognition of the relationship, and sharing of resources. It directs attention to the overall picture. For practitioners, the point is that the judgment did not treat any single indicator, such as a shared address or account, as decisive by itself.
At [59], the judge explains why the relationship generated special moral responsibility in this case: it lasted about three years, included two years of daily cohabitation, continued through Patrick’s work posting, and involved Pereira remaining committed while supporting her daughter. In plain English, the judge linked responsibility to both the relationship’s duration and the circumstances in which it was maintained.
At [68]–[70], the judgment describes the two-stage family-provision inquiry. The first question is whether the disposition was objectively inadequate at death. The second is what order should be made, using relevant facts at the time of the decision. The judgment also says a claimant need not establish need to satisfy the first question.
At [84], the judge rejects the parties’ proposed framing of relief as a contest only between Pereira and Andrea Patrick. In plain English, the Court considered its task to be applying the statutory distribution framework, rather than simply shifting a negotiated amount between two beneficiaries.
At [88], the judge states the result: one-fourth of the agreed estate value, or $78,309. The passage also gives the judge’s reasons for the form and scale of the provision, including mortgage discharge, home work, reduced pressure for regular employment and further education.
This decision is relevant to fact patterns involving a claim under the former Western Australian statutory scheme by a person asserting de facto widow status after the deceased dies intestate. The statutory conditions discussed by the Court make evidence of household membership, maintenance at death and special moral responsibility central ([7], [48]–[60]).
The relationship pattern here included cohabitation at the claimant’s home, a continuing relationship despite a work-related posting to another town, regular contact, shared household resources, contributions to expenses, and a reasoned explanation for not relocating. The judgment treated the posting as a circumstance to assess within the ongoing relationship, not as an automatic end to cohabitation or household membership ([18]–[21], [45]–[46], [57]–[60]).
Evidence relevant to the relationship included the claimant’s account, independent witnesses, a joint bank account, furniture arrangements, household contributions, telephone records and correspondence addressed to the deceased at the claimant’s home ([19], [23], [25], [31]–[34], [45]). The Court also considered contrary evidence, including institutional address records and the defendants’ denial of the relationship ([40]–[44]). The judgment therefore illustrates the importance of considering both relational and documentary evidence, while not making any one kind of evidence conclusive.
For the later adequacy and remedy stages, the case involved an estate of agreed value, prior distributions to the lawful wife and children, a claimant with a home and employment but modest means, and competing claims from a spouse and descendants ([3]–[5], [75]–[82]). The decision is not authority for an automatic one-quarter share: the award was tied to the facts and the judge’s assessment of provision needed in this case ([87]–[89]).
The supplied judgment does not report any later court’s treatment of Pereira. It therefore does not support a claim that the decision has been followed, distinguished, applied or rejected by later courts.
The judgment itself does discuss earlier authorities. It considers McKenzie v Falconer-Brown on the statutory criteria and special moral responsibility, Ingamells and Lynham on the composite assessment of de facto relationships, and Paterson on the role of sacrifice and relationship duration ([49]–[56]). For the provision inquiry, it refers to Bondelmonte, Coates, Singer v Berghouse, Bosch, Nelson, Browne, Re Fulop and Blore ([66]–[72], [86]). These are authorities used or discussed by Hasluck J, not later treatment of Pereira.
The judgment records a ruling on the amount of provision, but leaves costs and the exact terms of implementation for further consideration. At [90], the judge said the Court would hear from the parties on costs and orders, and anticipated a minute of proposed orders. The reasoning at [91]–[92] describes the anticipated distribution adjustments, including a proposed repayment by Andrea Patrick, but the supplied text does not contain the final formal orders.
There are also two different figures in the judgment for the undistributed balance. Paragraph [4] gives $116,969, while paragraph [81] gives $116,916. The difference does not alter the stated agreed total estate value or the ruling of $78,309, but it is an internal numerical inconsistency in the text.
The decision does not provide a formula for quantifying provision in other cases. It records a discretionary, fact-specific assessment and explains the factors relevant to it, but does not establish that a claimant in a similar relationship must receive the same fraction ([78]–[89]). Nor does the supplied judgment resolve how later courts treated the reasoning or whether the statutory provisions have since changed.
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : PEREIRA -v- ANDREA JANETTE PATRICK and JOHN REYBURN in their capacity as Administratrix and Administrator respectively of the Estate of GORDON PAUL PATRICK (DEC) & ORS [2001] WASC 342
ANDREA JANETTE PATRICK and JOHN REYBURN in their capacity as Administratrix and Administrator respectively of the Estate of GORDON PAUL PATRICK (DEC)
Inheritance Act - Family provision and maintenance - Deceased dying intestate - Claim for relief by de facto widow - Whether the claimant was a de facto widow - Principles relevant to that issue - Effect of intestacy provisions - Principles relevant to adequacy of provision - Relief afforded to claimant
Trustees Act 1962 (WA), s 65
Curtin v Public Trustee (as Administrator of the Estate of French (Dec)), unreported; SCt of WA; Library No 930531; 5 October 1993
Dridi v Fillmore [2001] NSWSC 319
Dunning & Anor v Public Trustee, unreported; SCt of WA (Murray J); Library No 960361; 12 July 1996
Howland v Ellis [1999] NSWSC 1142
Menzel v Pacey, unreported; SCt of WA; Library No 980240; 6 May 1998
Perger v The Public Trustee & Ors, unreported; SCt of WA; Library No 970071; 26 February 1997
Semmens v The Public Trustee, unreported; SCt of WA; Library No 930540; 27 September 1993
Stone v Coleman & Anor, unreported; SCt of WA; Library No 960683; 3 December 1996
1 HASLUCK J: This is an application by the plaintiff, Maria Elizabeth Pereira, who claims that the disposition of the estate of the late Gordon Paul Patrick effected by the law relating to intestacy is not such as to make adequate provision from his estate for the plaintiff.
2 The deceased died intestate on 10 May 1999. The plaintiff contends that she is the de facto widow of the deceased. She seeks relief pursuant to provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA).
3 At the hearing of the matter, counsel for the parties submitted to the Court by agreement a memorandum evidencing the value of the estate, such memorandum reflecting matters adverted to in the affidavit of a solicitor, John Henry Reyburn, sworn 9 November 2001 in his role as one of the administrators of the estate.
4 The effect of the memorandum was that as at the date of the hearing the value of the estate should be regarded as being $313,235.33. The parties recognise that various amounts had been distributed from the estate by the administrators, amounting in total to the sum of $196,266, with the result that the portion of the estate remaining undistributed is the sum of $116,969.
5 I note in passing that of the amount distributed prior to the hearing, the sum of $147,266 had been paid to the deceased's wife, Andrea Patrick (the second defendant in these proceedings) and the sum of $13,000 to each of Shaun Paul Patrick, Stephen Patrick, Matthew Mark Patrick and Lauren Hope Patrick (the remaining defendants in these proceedings).
6 I will have more to say about the provisions of the Inheritance Act in due course. For the moment, however, it is material to note that in s 7 of the Act one finds a description of the various persons who are entitled to make an application for provision out of the estate of a deceased person.
7 Section 7(1)(f) provides that an application may be made by a de facto widow of the deceased who, at the time of the death of the deceased, was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the Court, had some special moral responsibility to make provision. In the circumstances of the present case, it quickly became apparent that a threshold issue was whether the plaintiff could be characterised as a person of that description.
8 Accordingly, it becomes necessary to review the evidence presented at the hearing, having regard not only to matters relevant to the estate of the deceased and the adequacy of provision, but also to the question of whether the plaintiff can be characterised as a de facto widow of the deceased within the meaning of the statutory provisions.
9 Under the intestacy provisions of the Administration Act 1903 (WA), the widow of the deceased receives the first $50,000 and one-third of the balance of the estate. The deceased's children receive the remaining two-thirds. No provision is made for a de facto widow, from which it follows that the plaintiff in the present case will be left without provision from the estate unless she can obtain relief pursuant to provisions of the Inheritance Act.
10 It is not necessarily fatal to the plaintiff's claim that a portion of the estate has already been distributed. Section 8 of the Inheritance Act provides that in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under a Will or intestacy, the Court may make an order pursuant to s 65 of the Trustees Act 1962 (WA). By s 65(3), such an order may provide that any person to whom any assets to which the section applies were distributed, shall pay to the person making the claim, or to the trustee, a sum not exceeding the value of those assets.
11 In support of her claim for relief, the plaintiff relied upon her own affidavit sworn 3 March 2000, and a supplementary affidavit sworn 22 May 2001. She was cross-examined upon these affidavits at the hearing. In addition, she relied upon the affidavit of James Gilmour Wilson sworn 27 March 2000, the affidavit of Susan Catherine Martin sworn 2 March 2000, the affidavit of Spencer Gordon Black sworn 6 June 2001, and a number of exhibits which were adduced during the course of the hearing.
12 The plaintiff describes herself in the first affidavit as the de facto widow of the deceased who died intestate on 10 May 1999, aged 44 years. She said that to the best of her knowledge the second defendant, Andrea Janette Patrick, was the deceased's lawful wife at the time of his death, although the parties had been separated for several years. The remaining defendants are the children of the deceased and the second defendant.
13 It seems that the deceased and the second defendant were married on 26 March 1977. They lived together as man and wife for the next 18 years. It is apparent from certificate of title volume 1427 folio 248, that the deceased and the second defendant were registered as the proprietors of the property known as 13 Jindarra Close, Cooloongup, on 6 August 1984. The deceased is described on the title as a police constable and the occupation of his wife is given as home duties.
14 It was common ground at the hearing before me that the deceased and his wife, the second defendant, separated in December 1995. It seems that a settlement was arrived at between the parties as to the disposition of the matrimonial property. Pursuant to those arrangements, the second defendant bought out the deceased's interest in the residential property at 13 Jindarra Close. Thus, one notices on the relevant certificate of title that the subject land in its entirety was registered in the name of the second defendant on 26 January 1996. The deceased went to live with a friend of his, Ian Rankin-Wilson, at 30 Bates Way, Warnbro. At that time, the deceased was employed by the Western Australian Police Service and held the rank of senior constable.
15 The plaintiff said in her first affidavit that she met the deceased on 28 May 1996 at the Leisure Inn Hotel where she worked. The plaintiff had separated from her husband 10 years earlier and at that time was living at 6 Raby Court, Cooloongup. She was 35 years of age at that time and the mother of two children. She had been the sole registered proprietor of the residential property at 6 Raby Court since 10 August 1989.
16 According to the plaintiff, the deceased invited her to dinner a couple of times after their first meeting. They continued to see each other on a daily basis for about 10 days, after which they developed "an intimate relationship". At the commencement of the relationship, the deceased continued living with his friend at 30 Bates Way.
17 The plaintiff says in her affidavit that some months later, in September 1996, the deceased "commenced living with me at 6 Raby Court in a de facto marriage relationship, which continued until his death". She goes on to say that her son, Joshua, also lived at the same address during that time. Her daughter, Kerry, who is now 22 years old, did not live at the address, but visited frequently.
18 The plaintiff says that on or about 1 December 1998, the deceased was posted to the Kalgoorlie Police Station. Consequently, he was provided with housing in Kalgoorlie by the Government Employees' Housing Association, being premises in which he resided during his rostered work days. On the days he did not work, he returned to Perth and resided with the plaintiff at 6 Raby Court. He would come back to Perth whenever his work permitted.
19 According to the plaintiff, when the deceased was in Kalgoorlie, they spoke on the telephone virtually every day. Copies of her home and mobile telephone accounts were adduced in evidence in order to verify this contention.
20 The plaintiff said that, to the best of her knowledge, the deceased's posting was to be for a period of two years. It was her intention to move to Kalgoorlie to be with him, but she delayed moving there because her daughter fell pregnant in August 1998 and she wanted to be there to help her during her pregnancy and the first few months after the baby was born. The baby was born on 12 May 1999, two days after the deceased died.
21 It was the evidence of the plaintiff that she and the deceased remained very close throughout their relationship. She placed reliance upon various cards and passages from the deceased's diary by way of corroboration. She and the deceased considered themselves as husband and wife and talked about their plans for the future, including the buying of a house. She last saw the deceased on 29 April 1999, when he returned to Kalgoorlie. She said in her supplementary affidavit that the intimate nature of their relationship continued from the commencement of the relationship in June 1996 until the deceased's death in May 1999. The only interruption to the relationship in that period was the periods of physical separation as a result of the deceased being posted to Kalgoorlie on or about 1 December 1998. It was a sexual relationship and they slept together in the same bed.
22 The affidavits of the plaintiff were also directed to financial issues. According to the plaintiff, she was employed as a duty manager at the Leisure Inn Hotel during the course of the de facto relationship at a net weekly income of approximately $350. The deceased's income was roughly double her income and he contributed substantially to household expenses and outgoings and provided her with financial maintenance and support. She took eight months off work at the beginning of 1998 at the deceased's suggestion, but returned to her previous casual position at the Leisure Inn when the deceased got notice of his posting to Kalgoorlie. They did not have a cheque book or credit cards and all their expenses were paid for in cash. The deceased paid telephone accounts, electricity bills, water rates and other expenses and bills of the household. The plaintiff contributed to these expenses, but the deceased paid for more of such expenses. He also regularly paid for personal items which the plaintiff required. After he was stationed in Kalgoorlie, he continued to contribute each fortnight to the household expenses of 6 Raby Court.
23 The plaintiff said that in October 1998 she and the deceased decided to open a joint savings account. The purpose of the account was to save for future needs and wants, but, in particular, to save a deposit for the house that they were going to buy together. Bank statements were adduced in respect of the bonus saver account established in the joint names of the plaintiff and the deceased with Challenge Bank as from 22 October 1998, such statements establishing that the account remained in existence to the date of the deceased's death.
24 The plaintiff also described various purchases made by the deceased for 6 Raby Court and items of maintenance work attended to by the deceased. She said that she carried out a number of tasks of a domestic nature for the deceased, including housework, washing and ironing the clothes, cooking the meals, and cleaning and tidying the house.
25 The plaintiff's affidavits referred to the fact that after the deceased's death, a removalist's truck delivered to 6 Raby Court the furniture and certain effects which had been at the deceased's house in Kalgoorlie. The items of furniture and household equipment included some items which the plaintiff had purchased prior to meeting the deceased and some items which she and the deceased had purchased together. She referred also to correspondence being received by the deceased at 6 Raby Court.
26 The affidavits included reference to the financial circumstances of the plaintiff. The value of 6 Raby Court is said to be between $90,00 and $100,000, with an outstanding balance due on the mortgage of $13,519.02. The repayments on the mortgage are $185 per fortnight. The plaintiff said that she owned a 1982 Holden Commodore motor vehicle in poor condition, which is thought to be worth less than $1,000. She owns household furniture and effects of little value. She is still employed by the Leisure Inn Hotel as a duty manager and has a second job at the same premises as a waitress. She is now earning between approximately $430 and $500 net per week.
27 As at 22 May 2001, being the date of her supplementary affidavit, the plaintiff had $1,600 in the joint bank account and a balance of approximately $500 in another bank account. She is no longer supporting her son, Joshua, who is now living and working in Sydney. However, her daughter has separated from her fiancee and is living with the plaintiff at 6 Raby Court with her 2-year-old daughter on a temporary basis. The daughter is contributing to the cost of food, but is not otherwise contributing to the costs of the household. The plaintiff said that various maintenance jobs are required around the house which cannot presently be afforded.
28 The plaintiff said that she left school at the end of the second year of high school and worked for a short period as a cashier at a supermarket. She fell pregnant about nine months after commencing that employment. When she told her parents that she was pregnant, they insisted that she marry the father of the unborn child, which she did two weeks later. She was aged 15 years at the time and her husband was 17 and half. They had a further child three years later in 1980. The marriage lasted eight years and ended in 1985. She did not receive any support from her first husband, although she did receive child maintenance from him for several years after the separation.
29 The plaintiff went on to say that as a result of leaving school, falling pregnant and marrying at such an early age she has been unable to further her education. She would like very much to undertake a course of study to improve her employment prospects and for her own personal development.
30 The plaintiff said further that she does not own any shares, life insurance policies or other investments. She has a superannuation policy with Host West, the cash value of which as at March 2000 was $1,812.63.
31 James Gilmour Wilson is a police officer holding the rank of acting sergeant in the Police Service. He said in evidence that the commencement of the deceased's relationship with the plaintiff marked a significant change in the deceased. The deceased had previously been depressed and withdrawn, but after the relationship commenced, he became happy and outgoing. After the deceased's posting to Kalgoorlie, Mr Wilson continued to see the deceased when he returned to Perth. This witness confirmed that when in Perth the deceased lived with the plaintiff at 6 Raby Court. This had been the deceased's home since the commencement of the relationship with the plaintiff.
32 Susan Martin is an accountant in private practice in Rockingham. She provided accounting services to the deceased prior to his death. She saw the deceased and the plaintiff on a regular basis and saw them socially approximately two weeks before the deceased died. Her son was friendly with the plaintiff's son and was a regular visitor at 6 Raby Court. She said that the deceased and the plaintiff were in a relationship up to the time of the deceased's death in May 1999. She understood from her instructions that the plaintiff depended on the deceased for income support and she prepared the deceased's taxation return upon that basis, although the plaintiff was not named as a dependent in the deceased's 1999 tax return because she was earning in excess of $4,500 that year.
33 Spencer Gordon Black is the licensee manager of the Leisure Inn Hotel in Rockingham. He knew the plaintiff as a colleague at the Leisure Inn and also knew the deceased in his role as the liquor and gaming police officer who was responsible for the Leisure Inn. His evidence was to the effect that the deceased and the plaintiff commenced a relationship and lived together in Raby Court. The deceased often dropped the plaintiff off at work and picked her up afterwards. They often had a meal together at the Leisure Inn after the plaintiff finished work, and Mr Black sometimes joined them. He also regularly saw them out together at other places.
34 Mr Black went on to say that he visited the deceased and the plaintiff at their home at 6 Raby Court on perhaps six occasions. It was apparent from these visits that the deceased was living at 6 Raby Court with the plaintiff. He did not see much of them after the deceased was posted to Kalgoorlie, as he left the Leisure Inn to start his own restaurant business. However, the last time he saw the deceased was a week or so before he died. On that occasion, the deceased and the plaintiff came to his house and appeared to be happy. They sat close to one another, spoke affectionately to each other and held hands, as they had always done in the past when he saw them together. They appeared to be a very close couple. There was some talk of the plaintiff and the deceased purchasing a business together.
35 The affidavit of the second defendant, Andrea Janette Patrick, states that she is 44 years old and is the mother of the third, fourth, fifth and sixth defendants. She says further that she married the deceased at Perth on 26 March 1977 and lived with him until Christmas 1995. Since separation from the deceased, she has lived at what was formerly the matrimonial residence of 13 Jindarra Close, Cooloongup, with her daughter, Lauren, the sixth defendant. She says that she has a boyfriend who is an unemployed chef aged 44 years.
36 The second defendant says that she last worked as a carer for Perth Home Care three years ago. She has no formal qualifications and at present is a mother to her 16-year-old daughter, Lauren, who lives at home. As at mid-2001, she was in receipt of social security benefits. She refers also to the circumstances of her other children.
37 Her son, Shaun, is 24 years of age and lives in Adelaide. He is a watch repairer. He is single, in reasonable health, owns a Holden car and some furniture. He shares a house with friends.
38 Her son, Stephen, lives in Norseman. He is 22 years of age and works as a butcher's manager. He is single, is in reasonable health, and has no significant assets. He rents a house and lives alone.
39 Her son, Matthew lives in Rockingham. He is 19 years of age and is unemployed. He is single, in reasonable health, and lives in a caravan.
40 It is apparent from the second defendant's affidavit that she does not admit any part of the plaintiff's case and, in particular, does not accept that the plaintiff was ordinarily a member of the household of the deceased, or was being wholly or partly maintained by him. She does not accept that in September 1996 the deceased and the plaintiff commenced a de facto marital relationship or that such a relationship was in existence at the time of the deceased's death.
41 The defendants also relied upon the affidavit of Noel Leslie Scarff, sworn 8 August 2000. Mr Scarff was a lifelong friend of the deceased. He said in evidence that he and his wife did not actually meet the plaintiff until the time of the deceased's funeral, although they knew there was a woman in the deceased's life. The tenor of Mr Scarff's affidavit was that there was a degree of ambiguity as to whether the plaintiff and the deceased had made a firm commitment to live together. His understanding was that one of the factors which played a part in the plaintiff deciding not to move to Kalgoorlie was that her daughter was having a baby.
42 A number of affidavits relied upon by the defendants were directed to that part of the plaintiff's case in which it was submitted to the Court that the deceased had moved in to the plaintiff's residence at 6 Raby Court, Cooloongup and treated the relevant premises as his own residence. Bogoslav Grigoroff of the Human Resources Directorate of the Police Service said in an affidavit, sworn 22 May 2001, that after searching the directorate's records the only information obtained was that the deceased was residing at 1 Eccles Street, Kalgoorlie at the time of his death. The records also showed that he resided at 13 Jindarra Close, Cooloongup prior to that. However, on his transfer record, completed by him on 5 December 1998, the deceased listed his residential address as Raby Close (no number), Cooloongup.
43 Carole Elizabeth Adams, a legal officer employed by the Western Australian Police Union, said that the deceased's recorded postal address from 1996 to 1999 was care of Kalgoorlie police station, lot 670 Brookman Street, Kalgoorlie. No residential address was noted. An employee of the Police and Nurses Credit Society said that, according to the society's records, the last known residential address for the deceased was 1 Eccles Place, Kalgoorlie. The only addresses in Telstra's records were 30 Bates Road, Warnbro, with an address change to 1 Eccles Place, Kalgoorlie on 3 December 1998.
44 John Richard Revnak said in an affidavit, sworn 1 May 2001, that he is a Member Services Officer of the Government Employees Superannuation Board. The address given for the deceased in the Board's records as at 1 January 1988 was 13 Jindarra Close, Cooloongup. On 21 February 1997, this was changed to 30 Bates Way, Warnbro and on 6 July 1998, there was a further change to care of Police Department, Perth, WA.
45 I pause to observe that the plaintiff referred to this latter issue in her supplementary affidavit. She said that mail addressed to the deceased was regularly received at 6 Raby Court prior to his death and continued to be received for a period of time after his death. She exhibited to her affidavit various letters directed to him at 6 Raby Court, being a letter from Telstra dated 7 December 1998, a letter from Australian Olive Ltd dated 4 June 1999, and a copy of a letter from Queensland Paulownia Forests Ltd dated 3 June 1999.
46 It became apparent at the hearing, from the way in which cross-examination was conducted, that the plaintiff was to be challenged about the existence of a de facto relationship of the kind alleged. During the course of the cross-examination, the plaintiff affirmed that she cohabited with the deceased at 6 Raby Court for over two years prior to his transfer to Kalgoorlie on 1 December 1998. She said that it was her intention to join him in Kalgoorlie, and because he had no furniture, some of her furniture was used by the deceased at his Kalgoorlie address. The furniture and household items belonging to her were eventually returned to her after the deceased's death. She did not join him in Kalgoorlie because of her daughter's situation. She firmly denied the suggestion that she had ever only lived with the deceased for a period of a few weeks.
47 The second defendant agreed under cross-examination that by late 1996, she was aware the deceased had entered into a relationship. She conceded that on one occasion she had sent a Christmas card to the plaintiff and the deceased saying that she hoped the future would bring them both much joy and happiness. She agreed that the plaintiff attended at her house after the deceased's death to collect certain items. She said that she was on a sickness benefit at the moment. She agreed that the defendants would not be calling the deceased's friend, Mr Rankin-Wilson, to give evidence on behalf of the defendants.
48 I must now look at the law bearing upon what I have described as the threshold issue, that is to say, the question of whether the plaintiff can be regarded as a de facto widow of the deceased within the meaning of s 7(1)(f) of the Inheritance Act. I note that by s 4(2) of the Act, matters of fact are to be established to the reasonable satisfaction of the Court.
49 In McKenzie v Falconer-Brown (1990) 3 WAR 438, Murray J noted that the relevant provision contains a number of discrete elements and is not to be found in other comparable legislation in other jurisdictions. The qualifications surrounding the term "de facto widow" tend to indicate that the term is intended to extend to a woman enjoying all the outward appearances of marriage, other than a lawful ceremony, if the specific conditions are present. These are dependency in fact, membership of the deceased's household, and being a person for whom the deceased had some special moral responsibility to make provision.
50 His Honour observed that the difficulty in the cases concerning the statutory criteria always seemed to arise out of the requirement that the person concerned be one for whom the deceased, in the opinion of the Court, has some special moral responsibility to make provision. Clearly, that was a requirement additional to that which is to be drawn from the status of the plaintiff as a member of the deceased's household. Something extra is required.
51 Justice Murray approved an approach whereby the nature, length and quality of the particular cohabitation could involve special responsibility or where sacrifices had been involved. In circumstances of that kind, the contrast was drawn between the mere status of the de facto widow as ordinarily a member of the household of the deceased and a status which in time, and because of the particular incidents of the relationship, attracts to it a view that it has achieved some special closeness, durability and mutual self-sacrifice of one de facto spouse for the other.
52 On the facts of the case before him, his Honour remained unpersuaded that the plaintiff was truly a de facto widow within the meaning of s 7(1)(f) of the Act. The relationship was relatively short and it was progressing well, but in his Honour's view, it had not reached the stage which would create the necessary special moral responsibility. It was not as if the plaintiff made any considerable sacrifice for the deceased of a financial or other character. They were simply two people who expressed affection for each other and had entered into a mutually supportive and fulfilling relationship. Accordingly, having regard to the circumstances of that case, his Honour dismissed the plaintiff's application.
53 Counsel for the defendants placed considerable reliance upon reasoning of the kind outlined by Murray J in McKenzie v Falconer-Brown. Counsel for the defendants submitted that the plaintiff in the present case could not be characterised as a de facto widow within the language of the relevant statutory provision because the deceased had not shown the degree of commitment required for that status. In other words, after a short and somewhat equivocal cohabitation, it could not be said that the deceased did bear a special responsibility towards the plaintiff.
54 It is necessary, however, to take into account subsequently decided cases. These cases confirm that, in order to be entitled to claim under the relevant provision, the plaintiff must establish that she is the de facto widow of the deceased, that at the time of death she was being wholly or partly maintained by the deceased, she was ordinarily a member of the household of the deceased and the deceased, in the opinion of the Court, had some special moral responsibility to make provision for her.
55 It is apparent from Ingamells v Western Australian Trustees Ltd & Anor, unreported; FCt SCt of WA; Library No 930117; 5 March 1993, that the elements of a de facto relationship include, inter alia, living together, mutual affection and caring, mutual society and protection, sexual intercourse, recognition of the existence of the marriage by both spouses in public and private relationships and the sharing of material resources. Relationships take many different forms and what must be looked at is the composite picture, rather than attempting to isolate individual factors and attributing to them relevant degrees of materiality or importance. See Lynham v Director General of Social Security (1983) 52 ALR 128 at 131.
56 The relevant authorities were recently reviewed at some length by Miller J in Paterson v Vaughn Charles Bunter as Executor of the Will of George Samuel Adolphus Bunter (Dec) & Ors [2000] WASC 83. In regard to the requirement of special moral responsibility, Miller J appeared to approve the line of reasoning in McKenzie v Falconer-Brown that it was necessary to identify some element of sacrifice which underpinned the special moral responsibility. This might depend upon the length of the relationship or the provision of some particular care.
57 When I apply these principles to the circumstances of the present case, I am satisfied that there is sufficient evidence to support a conclusion that the parties were living together in a state of mutual society and affection. The second defendant's greeting card supports such a view. I find that sexual intercourse took place between the plaintiff and the deceased.
58 There was a recognition of something akin to a marriage in their public and private relationships and some sharing of material resources, this being evidenced by the joint bank account and the arrangements made concerning furniture. I find that the deceased made a regular contribution to household expenses and arranged for the plaintiff to take a period away from work. I am satisfied she was being partly maintained by him at the date of his death. The plaintiff has provided evidence to this effect and there is no evidence to the contrary.
59 I consider that a special moral responsibility can be said to arise from the length of the relationship between them, which extended over a period of three years prior to the deceased's death in May 1999. It included two years of daily cohabitation at 6 Raby Court, and a further period of intermittent cohabitation after the deceased moved to Kalgoorlie. There is a sufficient and persuasive explanation as to why the plaintiff did not join the deceased in Kalgoorlie in that the plaintiff was obliged to provide support to her daughter. I do not consider that the intimate relationship between the parties was brought to an end simply because one party was obliged to live elsewhere for a period in the course of his employment. The plaintiff and the deceased were ordinarily members of the household they had established at 6 Raby Court, being accommodation provided by the plaintiff. By remaining loyal to the deceased in such circumstances, the plaintiff denied herself other social opportunities, as she had for the preceding two years, and this underlines the deceased's special moral responsibility for her welfare.
60 In summary, I am satisfied that the plaintiff is the survivor of a relationship which, to outward appearances, was that of a married wife, even though there had been no lawful ceremony. The plaintiff was being at least partly maintained by the deceased and she had made some sacrifices in order to create and sustain the relationship. I have been able to form the opinion required by the Act that the deceased had a special moral responsibility to make provision.
61 It follows that, in my view, the threshold issue must be resolved in favour of the plaintiff in that she has been able to establish that she has standing of the kind contemplated by s 7(1)(f) to advance a claim as a de facto widow.
62 Against this background, I must now turn to the further questions raised by the originating summons as to whether the plaintiff was left without adequate provision and as to whether she is entitled to obtain relief. It will now be useful to look at the statutory provisions and legal principles bearing upon this aspect of the matter.
63 Section 6 of the Act provides that if any person dies then, if the court is of the opinion that the disposition of the deceased's estate effected by his Will or by the law relating to intestacy is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of certain prescribed persons, the court may, at its discretion on application made by or on behalf of any such person, order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. As I have already indicated, s 7 of the Act identifies the persons entitled to claim and the relevant list includes a de facto widow of the deceased.
64 By s 10, every provision made by an order shall operate and take effect in the case of an intestacy as a modification of the applicable rules of distribution. By s 14 every order made pursuant to the Act shall specify the part of the estate out of which the provision is to be made. Unless the Court otherwise orders, the burden of any provision shall, as between the persons beneficially entitled to the estate of the deceased, be borne by those persons in proportion to the value of their respective interests in such estate.
65 By s 12, notice of an application must be served on the executor. By s 6(2) no application shall be heard by the court unless the application is made within six months from the date on which the executor becomes entitled to administer the estate or the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
66 The principles governing relief were referred to succinctly in Bondelmonte v Blanckensee (1989) WAR 305 where Malcolm CJ said at 307:
"On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased ... [if] that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order."
67 It seems, then, that the first question is whether the disposition of the estate under the law relating to intestacy was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is, in effect, a jurisdictional question which is to be determined at the date of death of the deceased.
68 It is clear from Coates v National Trustees Executors and Agency Co of Australasia Ltd (1956) 95 CLR 484 that the answer to the initial or "jurisdictional" question posed by the section is not one which involves any moral disapprobation of the deceased's failure to make provision. It is simply a question of objective fact. The question calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of provision 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 on his bounty: Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201.
69 If the first question concerning the adequacy of provision can be answered in the affirmative, the Court in exercising its discretion to make such provision as it thinks fit must then proceed to the second question and take into account the relevant facts as they exist at the time of making the order.
70 In dealing with these questions, the Court must place itself in the position of the testator and consider what he ought to have done as a wise and just husband or father: Bosch v Perpetual Trustee Co [1938] AC 463. It follows that the applicant is not required to establish that she is in need before the Court may give an answer to the first or jurisdictional question. A test of need would be to overemphasise "adequacy" as against "proper" in s 6(1) of the Act: Nelson v Nelson, unreported; SCt of WA; Library No 990136; 9 April 1999 per Kennedy J at page 6. The determination of the second question, should it arise, involves similar considerations to the considerations mentioned earlier.
71 These principles continue to apply in this State, notwithstanding some cautionary remarks made by members of the High Court in Singer's case (supra), subject, of course, to the exercise of the discretion being guided by the purposes stipulated in the statutory provision: Browne v Macaulay [1999] WASC 208.
72 In Re Fulop (Dec) (1987) 8 NSWLR 679 McClelland J said at 680 in regard to the exercise of the discretion that the following principles apply:
"First, the court should not interfere with the dispositions in the will except to the extent necessary to make adequate provision for the plaintiffs proper maintenance, education and advancement in life, secondly, the expression 'proper' in this context connotes a standard appropriate to all the circumstances of the case, and thirdly, the court may take into consideration any matter (whether existing or occurring before or after the death of the deceased) which it considers relevant in the circumstances including (a) the nature and quality of the relationship between the plaintiff and the deceased (b) the character and conduct of the plaintiff (c) the nature and extent of the plaintiffs present and reasonably anticipated future needs (d) the size and nature of the estate of the deceased (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased."
73 Let me now apply these principles to the circumstances of the present case. I have already noted that, under the intestacy provisions, the widow of the deceased - in this case, the second defendant - receives the first $50,000 and one-third of the balance of the estate. The remaining two-thirds are to be distributed to the deceased's children in equal shares. The statutory provisions do not provide for a de facto widow in the position of the plaintiff.
74 When I turn to the first or jurisdictional question as to whether the disposition of the estate is such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant as at the date of death of the deceased, I consider that adequate provision has not been made.
75 The affidavit of one of the administrators, John Henry Reyburn, sworn 9 November 2001, establishes that the assets of the estate include substantial superannuation and death benefit insurance entitlements exceeding $200,000 and that the deceased also had other assets such as shares and savings account entitlements, which meant that his estate was reasonably substantial as at the date of his death.
76 The plaintiff was not in a state of acute need as at the date of death in that she owned the property at 6 Raby Court (subject to a comparatively small mortgage liability) and was in paid employment. Nonetheless, it is apparent from the findings I have made that her financial position was dependent upon her ongoing employment, with little prospect of advancement. Her domestic situation had been linked to the deceased's situation for a significant period prior to the deceased's death and she was partly dependent upon him financially.
77 There is no evidence before me that the defendants had contributed specifically to the creation of the deceased's estate. The second defendant has accommodation and owns what was the former matrimonial residence at 13 Jindarra Close, Cooloongup. Her sons, the third, fourth and fifth defendants, are adult sons and have some capacity to obtain employment. I must also take account of the fact that the plaintiff is not well-educated and has placed some evidence before me concerning her aspirations for further education and advancement.
78 Accordingly, against this background, when the matter is viewed objectively, I consider that adequate provision was not made for the plaintiff as at the date of death of the deceased and that the jurisdictional question must be resolved in her favour. It follows from my review of the decided cases that I must now proceed to the second question, being a question to be resolved as at the date of the Court determination, as to the manner in which the Court's discretion should be exercised, bearing in mind that the Court will only interfere with the effect of the intestacy provisions to the extent necessary to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant.
79 I have already noted from my review of the decided cases that considerations of the kind previously examined have a part to play in resolving the second issue. The Court must place itself in the position of the deceased and consider what he ought to have done as a wise and just husband and father. The Court may take into consideration any matters which it thinks are relevant to the case, including the nature and quality of the relationship between the testator and the plaintiff, the character and conduct of the plaintiff, the nature and extent of the plaintiff's present and reasonably anticipated future needs and the relative strengths of the claims to the testator's estate. The Court can also take into account any contribution, financial or otherwise, that the plaintiff may have made to the property or welfare of the testator, or putative testator in the case of an intestacy.
80 In the present case, there was evidence to suggest that the plaintiff provided companionship and affection to the deceased at an important stage in his life, after his marriage had broken down, and that the relationship between the plaintiff and the deceased continued for a substantial period. The decided cases certainly suggest that where provision is to be made for a widow or a de facto widow, then this should include provision of adequate accommodation and, as far as possible, for security of title. In the present case, however, the plaintiff is already the proprietor of the property in which she resides.
81 I noted that, as a matter of agreement between the parties, the value of the estate is to be regarded as the sum of $313,235.33. I noted also that the sum of $196,266 has been distributed, with the result that the portion of the estate remaining undistributed is the sum of $116,916. Nonetheless, the effect of s 65 of the Trustees Act 1962 is to allow for orders to be made which will carry into effect the ruling of the Court in respect of the application under the Inheritance Act.
82 I noted earlier that there is no evidence before me that the second defendant contributed to the creation of the assets constituting the estate. I take account of the fact that she had negotiated a settlement of matrimonial property with the deceased prior to his relationship with the plaintiff. It follows from the decided cases, however, that in determining what amounts to a just disposition, I must give weight to the claims of the defendants upon the bounty of the deceased, bearing in mind that the second defendant was married to him for many years and that the other defendants are his descendants. The deceased's three sons are adults, but they are not well-placed financially and the sixth defendant is still in her teenage years and, thus, at a formative stage of her development. The second defendant will continue to play a significant role in providing guidance and support to those who once comprised the deceased's immediate family circle. The financial circumstances of the plaintiff and the second defendant are similar in that both have modest means.
83 During the course of argument at the hearing before me, it was put to me squarely by counsel for both parties that I should view the question of whether any relief should be afforded to the plaintiff as essentially a contest between the plaintiff and the second defendant. Counsel for the plaintiff said expressly that the plaintiff did not wish to resort to any portion of the estate that would otherwise be vested in the children of the deceased, that is to say, having regard to the intestacy provisions, the balance of the estate after payment to the second defendant as the widow of the deceased of the first $50,000 and one-third of the balance. Likewise, counsel for the defendants affirmed that any financial relief provided to the plaintiff should be taken from that portion of the estate that would otherwise go to the second defendant as the deceased's widow.
84 I indicated to counsel at the time of this discussion that, in my view, it was not open to me to proceed in that manner. The role of the Court was limited to making a ruling in response to the application for relief before it, having regard to the criteria set out in the relevant statutory provisions. Those provisions presume that the burden of any order shall be borne by the persons beneficially entitled in proportion to the value of their prospective interests in the estate. Once a formal determination was made as to what relief (if any) was appropriate in the circumstances of the case, it would then be open to any party with an interest in the matter to waive his or her strict entitlement if there were a wish to do so. Having looked at the decided cases, I have not had any cause to change the view I expressed previously and will therefore proceed in the manner I have just outlined.
85 When one looks at the statement of assets and liabilities exhibited to the affidavit of the administrator, John Henry Reyburn, sworn 9 November 2001, and to the related statement of agreed value, it does not strike me immediately that there is any basis for division referable to the nature of the assets themselves. The plaintiff and the second defendant have their own residences and the various assets comprising the estate can be easily turned to account. It is for this reason, presumably, that the estate was partly distributed before it became apparent that a final distribution would have to be postponed pending resolution of the issues raised by the plaintiff's application. Accordingly, I conclude that the Court, in the exercise of its discretion, is obliged to make an award on a percentage basis.
86 I am mindful of the observations of Kitto J in Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 at 136 in which he is critical of awards being made on a percentage basis. However, I am conscious also that such an approach has been regarded as necessary in certain previously decided cases: Nelson v Nelson (supra). This seems to be the appropriate resolution of the matters in issue in the present case.
87 I proceed from the premise, being a stance consistent with the previously decided cases, that provision should be made for the plaintiff to be secure in her accommodation, with an extra allowance to be made to provide for her proper maintenance, support, education or advancement in life commensurate with the expectations that she might reasonably have had if her relationship with the deceased had continued.
88 I consider that an appropriate form of provision is for the plaintiff to be allowed one-fourth of the agreed value of the estate, that is to say, $78,309, on the assumption that this will be sufficient to allow her to discharge her existing mortgage, attend to home repairs and improvements, and alleviate her need for regular employment to some extent, so that she will be at liberty to proceed with further education of the kind foreshadowed in her affidavit.
89 I am mindful of the precept that the Court should only interfere with the effect of a Will or intestacy provisions to the extent necessary to provide the appropriate measure of relief. Accordingly, I consider that the balance of the estate remaining should then be divided in accordance with the usual application of the intestacy provisions, that is to say, the first $50,000 and one-third of the balance is to be allowed to the second defendant, with the deceased's children to receive the remaining two-thirds.
90 I will hear from the parties as to costs and as to the terms of any orders or directions that may be required in order to carry this ruling into effect. It may be that the parties will wish to adjourn for a period in order to prepare and bring in a minute of proposed orders reflecting the ruling contained in this judgment.
91 Putting the question of costs to one side, it seems that after deducting from the value of the estate the sum of $78,309 allowed to the plaintiff, the defendants would be entitled as follows: $111,642 to the second defendants (being $50,000 plus $61,642) and $30,821 to each of the remaining defendants.
92 I noted previously that the sum of $147,266 has been paid to the second defendant and $13,000 to each of the remaining defendants. This suggests that, pursuant to s 65 of the Trustees Act, the minute of proposed orders should also make provision for the second defendant to pay to the administrators of the estate the sum of $35,624 (being $147,266 previously paid less $111,642 due to the second defendant) for distribution to the children of the deceased in due course on a pro rata basis. If an order were made for the costs of the legal proceedings to be paid out of the estate, then, of course, these figures would have to be adjusted.
Pereira
Andrea Janette Patrick and John Reyburn in their capacity as Administratrix and Administrator respectively of the Estate of Gordon Paul Patrick
(1990) 3 WAR 438
(1983) 52 ALR 128
(1956) 95 CLR 484
(1994) 181 CLR 201
(1987) 8 NSWLR 679
(1960) 104 CLR 124
Application allowed. The Court ruled that Pereira should receive $78,309, representing one-fourth of the agreed estate value. It ruled that the remaining estate should be distributed under the intestacy provisions and indicated a repayment by Andrea Patrick of $35,624 to the administrators for distribution to the children. Costs and the final terms of orders remained to be addressed ([88]–[92]).