Porritt v Maguire

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4432/2000 JACK PORRITT v GARY MAGUIRE, JESSIE WILLIAMS & SUSAN FRANCES MAGUIRE - ESTATE OF RONALD MAPLEDORAM JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Ronald Mapledoram who died on 29 July 1999 aged 80 years. He was survived by his only son the plaintiff. He was also survived by his second wife from whom he had separated in 1974 and the second defendant who lived with the deceased as his de facto wife for 20 years up until the deceased's death. 2 The deceased made his last will on 20 November 1998. Under that will he gave the whole of his estate in the circumstances which have happened to Jessie Williams the second defendant. He appointed his son-in-law to be the executor and trustee of his will. The son-in-law, Gary Maguire, is the first defendant in these proceedings. His wife, Susan Maguire, is the third defendant she having been added because of some claims in respect of notional estate which I will refer to later. 3 The only asset in the estate of the deceased was his half share in his home at 16 Arden Street Waverley. That property was held by the deceased with his second wife, Nancy Mapledoram. The property was sold and the deceased's estate became entitled to one half share of the sale proceeds. The one half share amounted to $271,930. After the sale these proceeds which were to be held for the second defendant were paid by her direction to Gary and Susan Maguire. According to Susan Maguire the purpose of the payment was so that she and her husband could add to their house to provide future accommodation for her mother Jessie Williams. After the payment to Gary and Susan Maguire at the direction of Jessie Williams $20,000 was paid to each of their children to enable them to purchase a unit as an investment in June 2000. The three children purchased the unit at Botany using $60,000 from these funds. 4 The sale of the property and the distribution all took place before proceedings were commenced and, indeed, before the plaintiff found out about the death of the deceased. 5 Costs have been incurred in the present matter. The plaintiff has incurred $13,389 and the defendant has incurred $23,000 for costs. 6 I will deal with some of the history in the matter. Mrs Williams, the second defendant, was born in 1915. The deceased was born in 1919 and he married for the first time on 29 March 1941. He married Doris Perinoni but unfortunately that marriage did not last. The plaintiff was born on the 19 October 1943 and his parents separated when he was about one and a half years old. His parents were divorced on 31 August 1945. Susan McGuire, the daughter of the second defendant, was born 19 May 1944. 7 After the separation of the plaintiff's parents the plaintiff continued to live with his mother. His mother refused to allow his father, the deceased, to see the plaintiff while he was growing up. Between 1949 and 1959 the deceased paid maintenance for the plaintiff to his wife. Such maintenance was fairly substantial and amounted to approximately one-third of the deceased's income. On 15 July 1950, Doris Mapledoram, the plaintiff's mother married Walter Porritt. On 28 October 1959 the plaintiff changed his name by deed poll from Jack Mapledoram to Jack Porritt. As he was then only 16 he would have needed his mother's approval for that change. The deceased had remarried on 3 December 1949 when he married Nancy Potter. 8 In the early 1960s the plaintiff's mother called the deceased to inform him that the plaintiff was to be married. The deceased was not invited to the wedding but he and his new wife, Nancy Mapledoram, went to the church to watch the ceremony. The deceased did not speak to the plaintiff on this occasion. In the early 1960s, after the plaintiff's marriage, the plaintiff and a lady friend called at the deceased's residence. The lady friend was not his wife as the plaintiff had apparently separated from his wife. The visit was a brief one and was followed some six months later by another brief visit from the plaintiff to the deceased. 9 In October 1974 the deceased and Nancy Mapledoram separated. In the whole of the period that the deceased and Nancy had been together, namely, from 1949 to 1974 the plaintiff only saw the deceased on two occasions. In a phone conversation after the separation the testator had said to the plaintiff that he proposed to spend all his money but that he wanted the plaintiff to have his house. In early 1975 the deceased and Mrs Williams commenced to go out together. They commenced living together in a de facto relationship in 1980. The deceased and Mrs Williams each had properties and accordingly they would divide their time each week between the two properties. This de facto relationship continued until the date of the death of the deceased. 10 In approximately 1982, before the plaintiff moved to Queensland, the plaintiff went to meet the deceased. The deceased ceased work and retired in 1984. On 24 June 1996 the deceased made a will in which he gave his house to the second defendant, Mrs Williams, or in the event of anything happening to her, to her daughter, Susan McGuire. At about this time he informed Mrs Williams of the provisions of his will. In April or June 1999 there was a visit by the plaintiff to the deceased and Mrs Williams. Mrs Williams did not recognise him and talked of the deceased as her husband. The visit was with a lady friend of the plaintiff, Tracey Anne Holland. During the visit, which only occupied a short time, the plaintiff says that he asked the deceased whether the deal for the house was okay. According to the plaintiff, the deceased replied, "Don't you worry, it's all taken care of". 11 As I have mentioned, it was on 29 July 1999 that the testator died. Probate was granted on 8 October 1999 and contracts were exchanged for the sale of the property on 15 December 1999. Completion of the sale of the property occurred on 31 January 2000 and it was in May of that year that the solicitors for the plaintiff wrote to the defendant's solicitors inquiring about the estate of the deceased. According to the plaintiff he had become concerned when he had not received a Christmas card from the deceased that year and started inquiries as to the whereabouts of the deceased. He had not been notified of the death of the deceased by Mrs Williams who apparently had not informed Gary Maguire that the deceased had a son by his first marriage. As a result when Gary Maguire gave particulars of the death of the deceased he did not show the deceased as having a child. 12 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

13 I turn to the situation of the plaintiff. The plaintiff is 58 years of age and works as a motor mechanic in his own business which he carries on in Queensland. According to the plaintiff, he is single and has no dependants. The plaintiff owns his own business, tools of trade, a small boat and a caravan. These are worth approximately $50,000. The plaintiff says that he holds no real property and that he resides in a house owned by Tracey Holland. According to the plaintiff he pays her board and lives in the house as a border.

14 There was evidence from a private investigator Mr Reid who set up a deception to trap the plaintiff. He arranged to have his car serviced by the plaintiff at the plaintiff's garage. During the course of the servicing he engaged the plaintiff in conversation about many matters to do with the plaintiff's personal situation and his assets. According to Mr Reid the plaintiff said that he had been in a de facto relationship for about 12 years and that he and his de facto had purchased a new house approximately 18 months previously. According to Mr Reid he also had boasted about having two sets of books and about having deceived the Commissioner for Taxation as to what were his takings for the business. 15 Evidence was given by the plaintiff denying the substance of these allegations and, indeed, the plaintiff called Tracey Holland who also denied that there was any de facto relationship between them. There is no doubt that the plaintiff and Tracey Holland had shared a house together for some 11 or 12 years. Prior to Tracey Holland purchasing her house 18 months previously they had shared a house which the plaintiff himself had rented. 16 I was not impressed by Mr Reid as a witness. He failed to address the questions asked as a means of avoiding the simple question which required him to recount some conversations which had occurred only some four weeks earlier. He was evasive in this area. His contemporaneous notes did not refer to the words "de facto" or "wife" but merely to the fact that they "had been together for 10 years, about 12 years". This is surprising because if the word "de facto" had been mentioned it would be likely to have been noted. His account of the conversation attributed to the plaintiff about the place of his divorce I do not regard as significant. 17 There is no doubt that the plaintiff may have been tricked into talking about his personal life and the fact is that people often boast to strangers who are not likely to know the facts. It is also common for people to boast about cheating the Commissioner of Taxation. 18 Having regard to the sworn evidence of the plaintiff and Tracey Holland, whose evidence I accept, I am not satisfied that they were in a de facto relationship nor am I satisfied that the plaintiff has an interest in Tracey Holland's house. 19 The plaintiff's income is not critical in this case but in the event that it is, I would lean towards accepting Mr Reid's version as people who do not cheat the taxation system tend not to boast to the contrary. 20 There have been no contributions to the estate of the deceased by the plaintiff. It is of course critical in this case to look at the relationship between the plaintiff and the deceased. As I have already recounted, the deceased was denied access to his son by his former wife. One strange matter that occurred when the plaintiff was young was that he used to attend the local Masonic Hall for Scottish dancing. There he learned to play the drums. It turned out that his teacher was the deceased. The plaintiff was told this later when he was about 12 years old. No doubt the deceased had been forbidden to disclose his identity to the plaintiff. 21 The first occasion the plaintiff and the deceased met was in the early 1960s, after his marriage, and there were two occasions at this time. Thereafter there seems to have been one contact when the plaintiff, following a breakup in his marriage, proposed to move to Queensland. According to the plaintiff he visited his father and gave him his address so that he could contact him. There was only one other occasion when the plaintiff visited the deceased and that was the year that the deceased died. The plaintiff happened to be visiting in Sydney with Tracey Holland when they were both going to attend a family function connected with Tracey's father. I should mention that the arrangement between the plaintiff and Tracey arose out of the fact that the plaintiff knew Tracey's father as a friend. 22 The plaintiff insists that during the period from 1982 up until the year before the deceased's death that he and the deceased exchanged Christmas cards and spoke occasionally on the telephone. The plaintiff's evidence was supported by Tracey Holland. Mrs Williams said she did not know of any Christmas cards that the deceased received from the plaintiff. Mrs Williams, as I recounted, did not notify the plaintiff of the deceased's death. She says that she looked for a piece of paper with an address on it which had been given to the deceased. The version of this evidence in cross-examination was somewhat different from the affidavit evidence. It seems to me that Mrs Williams was not anxious to recognise the plaintiff and this may well have been known to the deceased. It would have been quite easy for Mrs Williams to have caused enquiries to be made to notify the plaintiff of the death of his father. 23 Nancy Mapledoram was cross-examined about the attitude of the deceased to his son. She gave evidence to the effect that the deceased lost interest after he could not get access to his son. There are probably good reasons why he did not take proceedings to enforce access, not the least of which would have been the cost. One thus has a situation where it was not the fault of the plaintiff that he did not have a relationship with the deceased during his childhood. It was probably something for which the deceased also could not be blamed. Of importance is the attitude that the deceased and the plaintiff took once contact was established in the early 1960s. The deceased, according to his partner, obviously continued his lack of interest. More importantly so did the plaintiff. This raises the question, whether in the circumstances of this somewhat minimal contact between the plaintiff and his father, it is appropriate that provision be made. 24 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person- "it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought , having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person." 25 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows: "This conclusion directly raises the question of whether the word "ought" in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator's Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts. ….. It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose. The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased's person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased. In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that "many cases suggest that an applicant must show a moral claim …", he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme. It seems to me that the introduction into s.7 of the present Act of the word "ought" in replacement of the words from s.3 of the 1916 Act "as the Court thinks fit" shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word "ought" seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case." 26 Meagher JA (NSWLR at 570) agreed with Priestley JA. 27 Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:- "Her right arises not merely from the bare fact of parenthood, which of itself does not generate a right , but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be." (Emphases added). 28 Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes. 29 In Benney v Jones, Mahoney JA at 560 said: "Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1. "Where the applicant is a member of the deceased's family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear." 30 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted: "It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:" 31 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales' case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18): "The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator's death." 32 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said: "Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962." 33 Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs, "In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. .." 34 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton's case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows: "In Singer's case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that "we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to "moral duty" or "moral obligation" may well be understood as amounting to a gloss on the statutory language". They then say "the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty." 35 Young J also observed: "In Fraser's case, Kirby P at p29 said that "I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning "moral duty". However, His Honour's decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law "either by the observations of the majority in Singer or by the High Court's reference, in the footnote, to what Murphy J said earlier (p27)." "Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words "moral claim" in decisions under this Act. "Sheller JA again did not consider that the High Court's suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 "the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order." 36 In Walker v Walker, (p 27) Young J noted: "It is often impossible to work out whether the degree of separation between parent and child at the date of the parent's death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between. The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff. Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …" 37 It seems to me that the formulation by His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters. 38 There are a number of things which the plaintiff in submissions has raised relating to the relationship. In particular, emphasis was placed on the last 20 years of the deceased's life and the contact which ensued over this period. It was pointed out that the plaintiff lived 600 miles away in Queensland and could not afford to visit his father. References were also made to the fact that, according to the plaintiff, the second and third wives of the deceased did not encourage the contact. One important fact which should not be overlooked is that the deceased acknowledged the plaintiff and supported him during his childhood. 39 I find it surprising that for the whole of the period from the early 1960s up until 1982 the plaintiff only saw his father on two occasions. He does not suggest that he telephoned his father regularly during this period. It seems to me that in this period the plaintiff totally ignored the existence of his father. This leaves one with the support for the plaintiff in his childhood and the slight relationship between them over the last years of the deceased's life. Accepting as I do the plaintiff's version of this relationship there are little of the normal incidents of a father and son relationship. Thus the same considerations do not apply as where a child has had a full lifetime relationship with his or her parent and assisted the parent in the parent's old age. The plaintiff's position in this case was taken by Susan Maguire and her husband who were the ones who looked after the deceased and Susan's mother, Mrs Williams, when they needed help in their declining health.

40 Thus, although there will not be a situation where the community would think that nothing ought to be left to the plaintiff the extent of the relationship is so slight that the amount of the provision must obviously be affected.

41 It is also necessary to give consideration to be position of any others who have a claim on the bounty of the deceased. The deceased's first wife has died and his second wife makes no claim on the estate of the deceased. The only possible person for whom consideration should be given is the second defendant Mrs Williams. The plaintiff asserts that for reasons I will come to shortly, no regard should be had to Mrs Williams' interest. The defendants take the opposite position.

42 Mrs Williams is now 86 years of age and lives in her home unit in Pine St Randwick. Her assets are as follows: -- Unit Pine St Randwick $380,000 Monies on fixed deposit $6,000 Savings account $8,800

43 Mrs Williams does not have any liabilities other than the usual outgoings connected with her unit. Her income is the aged pension of $416 per fortnight. At the moment she wishes to continue to live in her unit at Randwick although she can foresee that at some time in the future she would wish to move in with her daughter and son-in-law.

44 It has to be borne in mind when considering Mrs Williams' position in relation to the deceased that she lived with him in a de facto relationship for some 20 years. She also assisted the deceased as he got older and needed more help. 45 The question in this case is whether I should take into account the claim of Mrs Williams on the bounty of the deceased. If I do it will of course have a fundamental effect on the plaintiff's claim because effectively Mrs Williams is the de facto widow of the deceased of some 20 years standing.

46 In her affidavit evidence Mrs Williams referred to her desire to move in with her daughter Susan Maguire. It was for this reason that she said she gave the direction for the proceeds of sale to be paid to her daughter and son-in-law. There was no cross examination to suggest that this was to avoid a significant impact upon her pension. 47 The relevant paragraph was as follows:- "The deceased was entitled to a half share in 16 Arden Street, Waverley and upon its sale I directed that the one half interest that I was entitled to under the deceased's will should be paid to my daughter, Susan Maguire. I did this because I had spoken with Susan and my son-in-law Gary Maguire, shortly after the deceased's death and agreed with them that when I became too infirm to continue living by myself I would come to live with them at their home and I would pay from my share of the deceased's estate for the addition of renovations and additions to their home at 5 Inverness Street, Bronte where I could go and live in a self contained area. 48 Evidence was also given by Susan Maguire in her affidavit evidence in these terms:- "After the deceased's death my mother said to me "When I feel that I am no longer able to live by myself I would like to be able to come and live with you so I want to have Ron's money go to you and Gary for the purposes of going up so I can have a self-contained area to live in. After receipt of the balance of the deceased's half share in the Arden Street Property for approximately $270,000 my mother said to me words to the effect of, "I have been thinking about it Susan. I would like to give each of the boys (referring to her grandsons) $20,000 each to purchase a unit as an investment." As this was her wish Gary and I agreed to this and in June 2000 my sons purchased a unit at Botany using $60,000 from the deceased's estate as a part contribution to the purchase price." 49 In submissions the plaintiff suggested that I could totally disregard the claim of Mrs Williams on the testator's bounty for two reasons:-

(a) She happily surrendered all claim to the sale proceeds before the plaintiff brought his claim. (b) She did not need the proceeds, she had lived happily without it for two years and did not need it now. 50 I note that the affidavit evidence would not support the submissions. I turn to the first reason which is said to be supported by the evidence given in cross examination. 51 After dealing with the sale of the house Mrs Williams was asked the following questions. 'Q. You didn't want to receive the half share that Ron had given to you so you arranged for the solicitors to pay it from the purchase directly to Gary and Susan? A. Yes.

Q. You were happy to keep living at Randwick. You had been living at Randwick for-- A. 32 years.

Q. And for the previous 25 years that you had been Ron's wife you lived there half of the week? A. Yes.

Q. And for about five or six years before you and Ron took up together you lived at Randwick full time and you still live at Randwick today, don't you? A. That's right.

Q. Randwick is your home? A. That's right.

Q. Do you like living at Randwick? A. Yes, I do.

Q. Are you happy living at Randwick? A. At the moment I am, but who knows what lies ahead." 52 The answer to the first question is not an admission because the question has two questions within it. It is more likely that the witness was answering the second part of the question given the order and that there was no dispute that she had directed the payment. The last question and answer is consistent with her stated objective. After some more questions the following appears.

"Q. Do you know what Gary and Susan have done with the half share of the Bronte money that you had? A. It's still there because we haven't been able to use it.

Q. In some of the affidavits there is discussion of a proposal that at some time in the future, which nobody seems to have quite worked out, there is a possibility you may go and live with Gary and Susan but in order for them to enable you to go and live there they would need to extend their house to provide a room for you? A. Yes.

Q. There of course would be nothing to stop you providing money to them to do that in order to provide accommodation for you by selling your current house, would there? A. I suppose not, no.

Q. You wouldn't want two houses, would you? A. No.

Q. If you went to live with Gary and Susan you wouldn't want the worry of tenanting your Randwick property, would you? A. Probably, I don't know.

Q. You would probably sell the Randwick property? A. Possibly, I suppose.

Q. And there would be nothing to stop you giving that money to Gary and Susanne to pay them to put a room, an extension on their house to provide a room and a bathroom for you there, do you agree with that? A. Yes.

Q. In your most recent affidavit you give evidence that you have got your Randwick property of $380,000, I think the valuer says it is worth, and you have a little under $15,000 in investments so if you sold everything up tomorrow there would be those two amounts, something in the order of $395,000 available to provide for new accommodation for yourself, wouldn't you? A. Yes."

53 In answering the first question the use of the word "we" also indicated a continuation of a joint plan. In my view there is nothing in the evidence which suggests that Mrs Williams surrendered her claim to the sale proceeds. On the contrary, she did not renounce the bequest but accepted it. She put it in her daughter's care and wants to use it to build accommodation for herself when the time is appropriate. 54 The second reason advanced is no more than facts which will have to be considered when I come to the balancing exercise. 55 It is, of course, necessary to have regard to the way in which the plaintiff asserts that he has been left without adequate and proper provision for his maintenance, education and advancement in life. In the present case the plaintiff asserts that he needs funds for advancement in life. He suggests that he needs to be able to purchase a home in Brisbane and also have some funds as may be necessary to guard against the contingencies in life. There is evidence of asking prices for houses in Brisbane and one could expect that he would be able to acquire a house in the order of $200,000 or some slightly lesser figure. It was pointed out that the plaintiff had only a limited working career ahead of him. He is now aged 58 and has few assets behind him. Although at times in the past he has had funds these seem to have gone on either bad business decisions or as a result of his divorce. 56 Widows' claims are frequently the subject of applications in this Court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said, "Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring". 57 Mrs Williams was the deceased's de facto widow of 20 years standing. This is not as long as the period to which the court was referring but it is a reasonable period. She did not contribute to the estate of the deceased but looked after the deceased to the best of her ability and they seemed to have had a happy life together. The cross examination I have earlier quoted did not explore what were Mrs Williams' other needs once she had sold her house and moved in to the addition. Clearly she would still have a need to have funds in reserve in case her care could not continue in her daughter's house for any one of a number of possible reasons. 58 I do not regard the plaintiff's claim as superior to that of Mrs Williams' claim. He is fit and well and there was only quite minimal contact between him and the deceased. The amount of the estate in the light of Mrs Williams' claim could not extend to providing a house for the plaintiff. This leaves only his claim for a sum to provide for contingencies. In the circumstances I think that the plaintiff should receive a legacy of $30,000. 59 There is, of course, no estate as it has been distributed. Under section 24 in such circumstances the Court may designate property as notional estate subject to the provisions of section 27 and 28 of the Act. 60 Section 27 of the Family Provision Act is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered: (a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances. (2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to: (a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

61 In the present case the funds which were received from the sale of the property are held in bank accounts in the name of Susan and Gary Maguire. A sum of $60,000 of these funds has already been used to purchase a unit for the Maguire's three children. Those children are not parties to this action and, accordingly, their property cannot be designated as notional estate. 62 Evidence was given of the financial situation of Mr and Mrs Maguire no doubt for the Court to consider under section 27. They live in a property at 5 Inverness Street, Waverley which is valued at $740,000. Each of them has a car and Gary Maguire recently received $130,000 from his father's estate which he has invested. 63 There will be no interference with reasonable expectations on the part of Mr and Mrs Maguire and given that the proceeds are intact the substantial justice and merits do not prevent the making of an order.

64 Accordingly, I order as follows:- 1. The plaintiff receive a legacy of $30,000 out of the estate of the deceased. 2. The term deposit with St George Bank for $166,000 in the name of Susan Frances Maguire and Gary Maguire be designated as notional estate for the purpose of meeting orders 1 and 3. 3. The plaintiff's costs on a party and party basis and the defendants' costs on an indemnity basis be paid or retained out of the notional estate. 4. Liberty to apply on 7 days' notice. 5. Interest to run on the legacy in 1 above from 28 days from today's date in the rate provided for in the Wills, Probate & Administration Act .

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