Plaintiff v Defendant

3 The plaintiff was born on 31 May 1938 and is now aged 77 years. Laurel was born on 29 November 1946 and is now aged 68 years and the defendant was born on 25 June 1948 and is now aged 67 years.

4 At the date of his death, the deceased lived with the plaintiff in their home, being an apartment in Cambridge Street, Collingwood ('the Collingwood apartment'), which they held as tenants in common in equal shares.

5 The deceased's will dated 12 May 1995 provides that the plaintiff is to receive the contents of their home, the deceased's car (a 2008 Honda Accord), a pecuniary legacy of $15,000 and a life interest in the deceased's half share of the Collingwood apartment. The residue of the estate is bequeathed to Laurel and the defendant in equal shares.

6 Probate of the deceased's will dated 12 May 1995 was granted to the plaintiff and the defendant on 27 December 2013.

7 The agreed assets of the deceased's estate as at the trial date total $673,000 and comprise:

(a) a one half interest in the Collingwood apartment valued at $475,000; [2]

(b) the sum of $158,000, being funds held in a solicitor's trust account; and

(c) the proceeds of IOOF policies on the plaintiff's life, worth approximately $40,000.

8 The agreed liabilities still to be paid from the estate total $79,383.34 and comprise:

(a) $689.84 due to be reimbursed to the plaintiff for expenses;

(b) $15,000 being the pecuniary legacy to the plaintiff;

(c) $3,393.50 for the costs for obtaining the grant of probate; and

(d) litigation costs and disbursements estimated at $60,300 ($27,500 for the plaintiff and $32,800 for the defendant) and agreed to be paid from the residue of the estate.

9 The cash amount of the estate is approximately $198,000 (with the amount of $40,000 from the IOOF policies being paid on the death of the plaintiff). After deduction of the agreed liabilities, the net amount of cash will be $118,617 and is to be divided equally between the defendant and Laurel.

(a) whether the deceased's will failed to make adequate provision for the proper maintenance and support of the plaintiff;

(b) if further provision is required to be made:

(i) should the plaintiff's life interest in the deceased's half-share in the Collingwood apartment be enlarged to an extended life interest giving her the ability to use the estate's half of the proceeds of any sale of the apartment, if and when sold, to assist in paying any bond necessary for her to enter supported accommodation;

(ii) should the plaintiff receive the absolute ownership of the entire Collingwood apartment; and

(iii) should some other provision be made for the plaintiff?

11 The plaintiff seeks further provision from the deceased's estate by way of an absolute interest in the deceased's one half share of the Collingwood apartment, instead of the life interest given to her under the deceased's will. Otherwise, the plaintiff does not seek to challenge the disposition of the residue of the estate.

12 The defendant concedes that a simple non-portable life interest in the deceased's one half share of the Collingwood apartment is inadequate for the plaintiff's proper maintenance and support. However, he does not concede that the plaintiff should receive an absolute interest in the Collingwood apartment.

13 Instead, he submits that the plaintiff would be provided with adequate and flexible provision for her proper maintenance and support if, in addition to her own property and entitlements, she is awarded an extended portable life interest in the deceased's one half interest in the Collingwood apartment, otherwise described as a 'Crisp order' by Ipp J in Milillo v Konnecke as follows:

A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff's benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to "cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital".

Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff's use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest". [3]

14 The parties were mostly agreed on the relevant facts, with the evidence differing on only three matters: the health of the deceased; the length of time that the plaintiff took care of him and the defendant's contact with the deceased.

15 The plaintiff and the deceased commenced living together in 1979. At that time, they both owned properties and had savings of their own. In 1980, they sold their properties, pooled their funds and bought a home at Templestowe.

17 In 1997, they sold their Templestowe home and used the proceeds to buy the Collingwood apartment, owning it as tenants in common in equal shares.

18 The deceased had been a prisoner of war on the Burma Railway. As a consequence, he suffered from lumbar spondylitis, a condition that commonly causes back and neck pain resulting from inflammation of the vertebral joints.

19 In 1983, when the deceased was aged 63 years, the Repatriation Board determined that the deceased was incapacitated as a result of this condition, with effect from 9 August 1982. In 1983, the Department of Veterans' Affairs deemed him totally and permanently incapacitated as a result of the lumbar spondylitis and, from that time onwards, because he was unable to earn more than a negligible percentage of a living wage, he received a special disability pension.

20 In 2002, the deceased had a total hip replacement and some weeks later he underwent rehabilitation due to persistent hip pain. He also needed a gait aid for ambulation and had hydrotherapy and physiotherapy treatment.

21 The plaintiff's position on the deceased's health was that for the last 10 years of his life, the deceased was physically frail. He had undergone two hip replacements, used a walking stick, could not stand for long and could only walk short distances while leaning on the plaintiff. He was unable to attend to any household chores. He could not stand long enough or safely enough to make a cup of tea. He was unable to assist the plaintiff with the shopping and could not walk whilst carrying anything. His only outing when he was well enough was to a local coffee shop. The plaintiff could not leave the deceased alone for longer than it took her to do the grocery shopping. A neighbour of the plaintiff's daughter usually sat with him. He had many falls and had to be watched closely. Because of the spondylitis he often slept upright on a special chair. He was unable to put on his own shoes and socks for the last 15 years of his life.

22 The deceased's death certificate records that his cause of death was chronic obstructive pulmonary disease - a term that describes a number of lung conditions that are long term, gradually worsen and cause shortness of breath. For the last four years of his life, he suffered from pulmonary fibrosis, which occurs when lung tissue becomes damaged and scarred causing progressively more shortness of breath.

23 The plaintiff's care of the deceased was addressed in part by the deceased's consultant physician, Dr Peter Ellims, in a letter of condolence to the plaintiff dated 13 August 2013 as follows:

When you think what [the deceased] has been through and accomplished, he really was a unique person. To survive all those complicated medical problems including pulmonary fibrosis to his age is amazing, but I must say that without your support he would not have been able to do that, nor stay at home and make those trips to northern Victoria.

24 The defendant agreed that to the extent the deceased needed care, the plaintiff was the principal carer in his old age. Otherwise the defendant's position was that until the last year of his life, the deceased was generally in good health and physically frail only at the end of his life and then only for a short period. The defendant referred to the fact that the deceased drove his car until late 2008, travelled overseas in the last 10 years of his life, marched unassisted in the Anzac Day parade in Melbourne until 2009 or 2010, and subsequently attended the Anzac celebrations in Mildura, including in 2013. In May 2012, the deceased flew to Mildura and stayed with the defendant and his wife for 14 days when the plaintiff went to East Timor. During that time the deceased lived independently, not requiring any assistance with showering, toileting or putting on his socks and shoes.

25 There was also a difference between the plaintiff and the defendant as to the defendant's contact with the deceased. The plaintiff's position was that the defendant visited the deceased once or twice a year. In some years the plaintiff and the deceased stayed with the defendant in Mildura for a week or two. Over the 34 years that the plaintiff and deceased were together, the defendant spent one Christmas Day with them and none with Laurel. Neither visited the deceased in hospital during his numerous hospital stays, although Laurel did visit him in hospital once shortly before he died.

26 The defendant's position was that even though he and his wife lived in Mildura, they visited the deceased numerous times when he was in hospital, and were in regular telephone contact with the deceased during these times. The defendant and the deceased also contacted each other every Sunday evening.

27 The plaintiff's evidence was that Laurel saw the deceased three or four times a year. Laurel did not contradict this evidence.

28 The plaintiff's assets amount to $577,200 comprising a one half share of the Collingwood apartment, $106,000 in savings and Telstra shares worth around $1,200.

29 She receives a pension of $420 per week (or $21,840 per annum) from the Department of Veterans' Affairs and has a gold card, which provides her with medical, pharmaceutical benefits and travel for medical care and medical equipment, if needed. The interest from her savings took her total income in 2014 to $24,180 per annum.

30 Her recurrent expenses are around $5,000 per annum, comprising body corporate fees, water and council rates and household insurance.

31 With her 2014 income of $24,180 and expenses of $5,000, she is left with around $19,000 per annum or $365 per week for her other living expenses and outgoings.

32 The plaintiff also receives the deceased's 2008 Honda Accord car, the legacy of $15,000 and the life interest in the deceased's half share of the Collingwood apartment under the will.

33 The defendant is semi-retired. He works part-time doing glass window tinting from which he earns $4,235 per annum. He receives a part age pension of $359 per fortnight or $9,515 per annum. He has superannuation of $435,496, from which he earns $13,000 per annum. In all, his income totals to $26,750 per annum.

34 He and his wife own a property in Mildura, valued at $450,000. They also owned an investment property in Mildura, which has now been sold. From the net proceeds of the sale, $75,000 was paid into the defendant's self-managed superannuation with the balance paid into his wife's superannuation fund.

35 The defendant's wife is self-employed and works as a chartered accountant. She earns $27,670 per annum and has superannuation of $298,565. The defendant inherited $95,000 from his late mother. This sum and the proceeds of sale of the investment property are included in the figure of $435,496 for the present value of his superannuation and his wife's superannuation of $298,565.

36 The defendant and his wife jointly own a caravan valued at $40,000 and both own a car.

37 The defendant is entitled to a half share of the residue of the estate of the deceased. This includes the amount calculated above at around $60,000. As the will stands, the defendant would also be entitled to half of the remainder interest in the deceased's share of the Collingwood apartment upon the death of the plaintiff.

38 The defendant has had a knee replacement. Both the defendant and his wife have indifferent health and significant health costs.

39 Laurel works four days a week as a social worker. Her gross salary is $56,160 per annum. She has savings of $68,000 and a car. She has $78,000 in an income stream fund with HESTA, from which she draws down and $35,000 in another superannuation fund. She owns and lives in a property in Moorabbin which is 60 years old and is valued at $565,000. She inherited the property from her late mother. She has no liabilities other than the unspecified costs of unspecified major repairs to her home.

40 She is entitled to a half share of the residue of the estate of the deceased, being around $60,000 immediately and half of the remainder interest in the deceased's share of the Collingwood apartment after the death of the plaintiff.

41 Laurel has ongoing back and other health issues and will be retiring in the near future, when she will receive the aged pension.

42 The plaintiff lives in the Collingwood apartment and wishes to continue to live there. Her absolute entitlement to one half of the Collingwood apartment is not an accident of registration, but an acknowledgment of her actual financial contribution. Before she met the deceased, she owned her own home. She then sold her home and used the proceeds from that sale to purchase with the deceased their home in Templestowe. In 1997, the plaintiff and the deceased sold their Templestowe home and the plaintiff paid her share of the net proceeds for the purchase of the Collingwood apartment.

43 The plaintiff's legal and equitable half interest in the Collingwood apartment distinguishes her case from those where an applicant has no legal or beneficial interest in any of the deceased's property.

44 Save for the legacy of $15,000, a car and the home contents of the Collingwood apartment, the only benefit that the plaintiff receives from the estate of the deceased is the life interest in his half share of the Collingwood apartment. [5]

45 The plaintiff submits her entitlement to an absolute interest in the deceased's half share of the Collingwood apartment is so much the stronger in the circumstances where the deceased did not leave her with a 'nest egg' or an income stream notwithstanding that he had $158,000 that he could have left her, but instead left it to the defendant and Laurel.

46 The plaintiff contrasted the monetary value of benefits received by the plaintiff under the will with her entitlements under an intestacy scenario[6] to underscore the inadequacy of the plaintiff's entitlement under the will, as follows:

(a) if the deceased died intestate,[7] the plaintiff's entitlement would be $282,666; [8]

(b) the plaintiff's life interest as a 77 year old woman[9] is approximately 42% of $475,000 or $199,500 which would amount to $214,500 when the plaintiff's legacy of $15,000 in added to that amount. [10]

47 The plaintiff referred to the shortcomings of traditional and extended life interests compared with an absolute interest as follows:

(a) the want of flexibility because of the strictures of the Settled Land Act 1958;

(b) the absence of independence because of the need from time to time for the life tenant to consult the trustee or remaindermen or both;

(c) the lack of security, for example, where there is a medical or other emergency that requires money to be raised by way of mortgage over the Collingwood apartment; and

(d) the prospect for future disputes, for example, where there is the requirement for the payment of expenses of a capital nature of the estate during the period of the life interest.

48 The plaintiff submits that it also relevant to consider her life expectancy when considering the merits of life interests versus absolute interests. According to the 2015 Life Expectancy Tables produced by Cumpston Sarjeant Pty Ltd, Consulting Actuaries, the plaintiff has a life expectancy of 13.10 years. She would wish to live where she has for the last 18 years with the flexibility, independence and security that goes with an absolute interest rather than being relegated to the position of a tenant in a home in which she has had the unfettered use and enjoyment for so many years.

49 The defendant submits that the deceased's desire to leave an inheritance to his adult children is not in itself a reason to discount the quantum of what would otherwise be an appropriate award for the plaintiff, but his desire to do this and the need for some financial assistance that his adult children now have and will have in the future must be weighed in the balance against any further provision for the plaintiff.

50 When these competing considerations are properly balanced and recognised, adequate provision will have been made for the plaintiff if the plaintiff's existing life interest in the deceased's half share in the Collingwood apartment is extended. This is because an extended life interest would be sufficient to provide adequately for the plaintiff for the present and for the future if she found it necessary to enter into supported accommodation.

51 If the plaintiff continues to live in the Collingwood apartment, after payment of the outgoings for the apartment, she will have an annual income of $19,000 available to her without resorting to her capital.

52 If she wishes to downsize to a smaller residence, she could sell the Collingwood apartment and use her half share of the sale proceeds to buy the smaller residence and receive the additional income generated from the investment of the estate's half share of the proceeds from the sale as well as interest from her existing capital.

53 If the plaintiff should need or wish to enter supported accommodation, then she will have her half of the net sale price of the Collingwood apartment to pay any accommodation bond. She would also have the same amount of capital to invest from the estate's half share of the Collingwood apartment as well as her own existing capital of $120,000. If she moved into supported accommodation, her living expenses would largely be covered by her accommodation fees, and even if her expenses exhausted almost all of her pension, she would still have the interest generated from the sale proceeds of the deceased's half share of the Collingwood apartment and her own capital to provide for her cost of living.

54 The defendant emphasised both his and Laurel's financial needs, noting that he has a life expectancy of 17 years and that his superannuation must provide financial security for both himself and his wife, with both of them facing significant health costs. Laurel has a life expectancy of 19 years and her working days are drawing to a close. She is not as financially well off as the defendant and will have real need for financial assistance from her father's estate before the end of her life.

55 The defendant accepts that the deceased had a responsibility to make provision for the proper maintenance and support of the plaintiff. As the defendant also submits that adequate provision will have been made for the plaintiff if her existing life interest in the deceased's half share in the Collingwood apartment is extended, the defendant can be taken to accept that the deceased's will failed to make adequate provision for the proper maintenance and support of the plaintiff. Therefore, the only question remaining is what further provision should be made for the plaintiff's proper maintenance and support.

56 In determining what further provision should be made for the plaintiff, the Court must have regard to the matters set out in ss 91(4)(e)-(o) of the Act, and any other matter the Court considers relevant. The matters required to be considered under the Act are generally agreed between the parties, as set out above.

57 In determining the appropriate amount of further provision to be made, the Court must assess the need of the plaintiff by reference to the needs of the defendant and Laurel as children of the deceased.

58 The nature and content of what is adequate provision is a flexible concept, to be adapted to conform with acceptable community standards and involves a broad evaluative judgment not constrained by preconceptions and predispositions.[11]

59 The assessment as to whether the testator failed to make adequate provision is determined by reference to matters that were known, ought to have been known, or were reasonably foreseeable to the deceased at the time of his or her death.[12] The assessment as to what provision the Court should make should be determined at the date of the trial, taking into account the plaintiff's position at that time.[13]

60 It is often said that the obligation of a deceased to his widow is, at the least, to ensure that she has a roof over her head. That roof has been provided either by matrimonial homes being awarded absolutely, sufficient funds to purchase another suitable residence, a life interest in a property or even a mere right of occupancy. [14]

61 The appropriateness of each of these solutions, and indeed whether there is in fact an obligation to provide a home for the plaintiff, must be made having regard to all the facts and circumstances of the particular case, including the circumstances and needs of other persons having legitimate claims upon the deceased's bounty and their circumstances.

62 Counsel for the defendant provided an overview of the relevant cases, including the special position and needs of a widow, and what these cases showed to be the general approach to family provision claims by a second spouse or partner where the contest is between the plaintiff and children of the deceased spouse or partner.

63 The normal duty of a testator, expressed in traditional terms, is to provide a widow with the security of an appropriate home in which to live, a secure income, and a fund with which to meet unforeseen contingencies. [15] The reason that a mere right of residence will usually be an unsatisfactory method of providing for the accommodation of a surviving spouse is that circumstances may compel the survivor to leave that residence. Old age is a 'growing problem' in the community, and adequate provision renders it necessary to facilitate a move to supported accommodation should this become necessary. The duty, as expressed in traditional, that is, post 1980 terms, is a useful guide where there has been a long and happy marriage and a widow has helped build up the estate of the deceased. But that guide is expressed in terms which, generally, are applicable only in the absence of competing claims.

64 Counsel for the defendant noted that if proper maintenance for a widow does require that she be given absolute ownership of a home, then the fact that her children may ultimately inherit it is not a reason to award her less. The relevant constraint, or the relevant limiting factor, is not the desire of the Court to prevent property inheritance from passing from one side of the couple to the other. Rather there is a two-fold constraint:

(a) First, that enlarged provision should be made for a plaintiff only if, and to the extent that, it is necessary to alter the will to make adequate provision for a plaintiff's proper maintenance and support. As Callaway JA said in Grey v Harrison:

...it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention, and simultaneously limits its legitimate extent. [16]

(b) Secondly, any enlarged further provision must be limited by balancing the needs of the plaintiff for increased provision against the proper claims that the testator himself recognised needed to be satisfied out of his testamentary bounty.

65 Where in any case the needs of the plaintiff spouse do not dictate that he or she be given an absolute interest in the home that was shared with the deceased, but the survivor may need access to the full amount of the capital tied up in the home, then the competing needs can be accommodated in various ways. Whilst a simple life interest may be insufficient, this does not automatically dictate that the surviving spouse must be equipped with the absolute ownership of the family home.

66 Counsel for the defendant observed that the New South Wales decisions illustrate the ways in which an appropriate balance can be struck and include the following:

(a) a Crisp order giving a plaintiff a 'portable' life interest, with the additional right to use the proceeds of sale of the property to move to a retirement village, nursing home, or hospital;

(b) the provision of a pecuniary legacy, plus a Crisp order in relation to the family home;

(c) a direction that the family home be sold, and:

(i) part of the proceeds be provided to the plaintiff absolutely; and

(ii) the balance of the proceeds be applied in (or towards) the purchase of alternative accommodation selected by the plaintiff, for her own use and occupation during her life, and in remainder that portion to fall into residue;

(d) giving the family home to the plaintiff absolutely, but subject to a charge to secure payment of part or all of the proceeds of its sale back to the estate, on the earlier to occur of the death of the plaintiff, or the plaintiff making the decision to sell the property in his or her lifetime;

(e) creating a fund to be held on trust to provide for the plaintiff's accommodation for life, in an alternative home, a retirement village, a nursing home, or in a total care facility; with a direction that any surplus capital not applied for this purpose be invested to provide an income to pay any accommodation fees, and otherwise to pay the income to the plaintiff for life; with the fund falling into residue on the death of the plaintiff.

67 The contest between the deceased's obligations to his second wife and his obligations towards his adult children by his first wife is a familiar contest in this jurisdiction. The contest between the plaintiff and the adult children in this proceeding is limited to the type of interest that should be provided to the plaintiff in the Collingwood apartment: an absolute interest as opposed to an extended portable life interest.

68 The submissions of the parties provide for the plaintiff either continuing to live in the Collingwood apartment or moving elsewhere. Either way, the plaintiff will have a secure roof over her head but otherwise there is significant difference in the ultimate disposition of the property. An absolute interest to the plaintiff means the property would pass under the provisions of her will whereas an extended portable life interest ensures that the deceased's interest in the Collingwood apartment will pass to his adult children on the death of the plaintiff. The latter course was a wish clearly expressed by the deceased in his will.

69 As a long standing second wife, the plaintiff's proper maintenance and support is foremost but the competing claims of the adult children and the wishes of the testator are significant factors in the consideration of what further provision should be made for her.[17] The Court's discretion to interfere with a testator's disposition is not untrammelled nor is it to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the deceased's freedom of testamentary disposition, a freedom that remains a prominent feature of our legal system.[18]

70 During their long relationship, the plaintiff and the deceased maintained separate ownership of the Collingwood apartment and both contributed to its purchase. This is not unusual in a second marriage as there is often a wish that the parties to a second marriage keep their assets separate so they may be left to their respective families.

71 Whilst there was a difference between the plaintiff and the defendant as to the deceased's health and the length of time that the deceased needed care, it is apparent that the plaintiff made a significant contribution to the care of the deceased. She was the person who was with him on a daily basis and in the best position to assess his needs. Considering the deceased's war time experiences, his resulting incapacity since 1982 and his subsequent health issues over many years, on balance, he would have required ongoing care for many years, rather than just the last year of his life, as contended by the defendant. The plaintiff's care of the deceased meant that the deceased was able to remain living at home until his death which, as expressed in the letter from the deceased's consultant physician, he otherwise would not have been able to do. This significant contribution has meant that the deceased's only valuable asset, being his half share of the Collingwood apartment, has not been sold thereby ensuring that he had sufficient assets on his death to provide for both the plaintiff and his adult children, none of whom are wealthy.

72 I accept the plaintiff's submissions as to the shortcomings involved with traditional and extended life interests compared with absolute interests. In particular, where there has been litigation between a second wife and the adult children of the first marriage, it is desirable in most cases that any ties between them should end. Had the estate of the deceased been larger, and the competing financial circumstances of the plaintiff and the adult children been not so compelling, it would have been preferable for any further provision for the plaintiff to have been made in a manner that meant the plaintiff and the adult children would not have had to deal with each other in the future, for example, by way of an absolute interest in the Collingwood apartment to the plaintiff, with the interests of the adult children secured by a charge over the property. In this way, any involvement between the plaintiff and the adult children would be avoided during the plaintiff's life. It would mean, however, that the plaintiff would be liable for the payment of any capital outgoings on the Collingwood apartment which I consider undesirable in view of the plaintiff's financial circumstances and the fact that any capital works would ultimately be for the benefit of the adult children.

73 In the present circumstances, where the estate is not large, where there are significant competing financial needs and where the deceased wishes were that his adult children should benefit from his estate after the death of the plaintiff, I consider that further provision for the plaintiff's proper maintenance and support is provided by an extended portable life interest in the Collingwood apartment.

74 An extended portable life interest has significant value to the plaintiff in both monetary terms and as security for her future accommodation needs. It provides for her wish that she remain living in the apartment and for the future should she find it desirable or necessary to move to alternative accommodation or supported accommodation. If the plaintiff does sell the Collingwood apartment, she will have a secure nest egg for her future contingencies from the additional income from the investment of the sale proceeds. An extended portable life interest also provides for the adult children and preserves the deceased's wishes that his interest in the Collingwood apartment passes to his adult children on the plaintiff's death.

75 I will order that, pursuant to s 91 of the Act, further provision is to be made for the plaintiff from the estate of the deceased by providing her with an extended portable life interest in the Collingwood apartment.

[1] Note that as the deceased died prior to 1 January 2015, the new family provision regime under the Act, as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, does not apply.

[2] The value of the Collingwood apartment is agreed at $900,000 to 950,000. The parties used the sum of $475,000 for the deceased's half share of the Collingwood apartment.

[3] [2009] NSWCA 109 (15 May 2009)[47]-[48] (Ipp JA).

[4] The deceased's death certificate records the deceased was previously married for 25 years.

[5] It was not contested that the home contents are of nominal value and passed to the plaintiff by right of survivorship.

[6] Downing v Downing [2003] VSC 28, [36] (Osborn J).

[7] Pursuant to s 51 (2) of the Act. It is generally accepted, that for the purposes of a claim under Pt IV, where a deceased dies intestate he is taken to have made a will in accordance with the intestacy provisions: Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) [5], referring to Re Russell [1970] QWN 22, 56 referred to in Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692, 708 (Gummow and Hayne JJ). See also Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 272 [3] (Callaway JA). This calculation also ignores the home contents and car.

[8] The calculation is the estate cash of $158,000 plus $475,000 plus 40,000 equals $673,000. From this amount, the plaintiff would be entitled to the first $100,000 plus one third of $673,000 (being $291,000) which amounts to $282,666.

[9] Based on the Life Tenant Table published by RevenueSA.

[10] These figures do not take into account the home contents and car.

[11] Camernik v Reholc [2012] NSWSC 1537 (13 December 2012), 154, (Hallen J); Slack v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253, 284 [125]-[126] (White J) (Citations omitted). The Court interpreted s 59 of the Succession Act 2006 (NSW), which establishes a similar legislative regime in New South Wales.

[12] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ).

[13] Ibid 507. See also Blore v Lang [1960] HCA 73, (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).

[14] See Montague v Montague [2002] NSWSC 328 (22 April 2002) [62]-[65] (Austin J); Smith v Barker [2005] NSWSC 14 (2 February 2005) (McLaughlin M); Moore v Moore [2005] VSC 95 (8 April 2005) (Mandie J); Abrego v Simpson [2008] NSWSC 215 (13 March 2008) (Windeyer J).

[15] At least since 1980, when in White v Barron [1980] HCA 14; (1980) 144 CLR 431 the High Court disapproved of its earlier 1957 decision in Worladge v Doddridge [1957] HCA 45; (1957) 97 CLR 1 that provision for a widow is appropriately confined to widowhood: see Kitto J at [9] 'I entirely agree in the statement of that learned Judge in In re Jonathan Howard [1925] NSWStRp 13; (1925) 25 SR (NSW) 189, 193; 42 WN 34, 35, that in most cases the maintenance ordered for a widow should be confined to continuance of widowhood.'

[16] [1997] 2 VR 359, 366.

[17] Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011) [40].

[18] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; [1962] 107 CLR 9, [19] Dixon CJ; McKenzie v Topp [2004] VSC 90, [63] Nettle J.