Supreme Court of WA|1999-08-30|Before: Mr J

Randell v Randell as Executor of the Will of Herbert Samuel Randell (Dec) & Ors [1999] WASC 146 (30 August 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RANDELL -v- RANDELL as Executor of the Will of HERBERT SAMUEL RANDELL (DEC) & ORS [1999] WASC 146

BARRY JOHN RANDELL as Executor of the Will of HERBERT SAMUEL RANDELL (DEC)

Inheritance Act - Application by widow - Status of "moral obligation" test in Western Australia - Factors relevant to "jurisdiction question"

Goodchild v James [1994] 13 WAR 229

Menzel v Pacey & Ors, unreported; SCt of WA (Master Sanderson); Library No 980240; 6 May 1998

Nicholl & Ors v Perger & Anor, unreported; FCt SCt of WA; Library No 970259; 6 May 1997

Perger v The Public Trustee & Ors, unreported; SCt of WA (Sanderson M); Library No 970071; 26 February 1997

1 MASTER SANDERSON: This is the plaintiff's application brought under the provisions of the Inheritance (Family and Dependants' Provision) Act (the "Act"). The plaintiff is the widow of Herbert Samuel Randell who died on 30 January 1996. The first defendant is the only child of the deceased and is the executor of his will. The first defendant is not a beneficiary under the deceased's will and he has participated in these proceedings only as executor. The second and third defendants are the children of the first defendant and the grandchildren of the deceased. The application is supported by three affidavits sworn by the plaintiff, these are respectively dated 13 November 1996, 23 April 1998 and 7 July 1999. The first defendant filed three affidavits dated, respectively, 11 December 1996, 15 July 1998 and 12 July 1999. Each of the second and third defendants filed one affidavit. The second defendant's affidavit being sworn 28 June 1999 and the third defendant's affidavit being sworn 24 June 1999. The third defendant has married since these proceedings were instituted and her affidavit is sworn under her married name of Sarich. The plaintiff and all three defendants were cross-examined on their affidavits. All of the affidavits were taken in without objection and formed the evidence of the parties in relation to the application.

2 The deceased left a will dated 8 April 1994. The will appointed the first defendant executor and trustee and devised and bequeathed all of the deceased's real and personal property to the trustee. The will authorised the trustee to realise all available assets and to divide those assets equally between the second and third defendants. At the date of his death, the deceased had a half interest in a property at 19 Fairway Crescent, Meadow Springs, Mandurah ("the Mandurah property") which forms the major part of his estate. The remaining 50 per cent of this property is owned by the plaintiff. The deceased's will gave to the plaintiff a life interest in the deceased's share of the Mandurah property. The provision of the deceased's will creating this life interest is in the following terms:

"1. Notwithstanding the trusts for sale contained in Clause 4 hereof:-

(a) if my wife PAULINE MAY RANDELL shall survive me and be cohabiting with me at the date of my death (but excepting any cessation of cohabitation caused only by reason of hospitalisation) to permit my said wife to reside in the principal residence owned by me at the date of my death during her life she paying all rates taxes insurance premiums repairs and other outgoings thereon and keeping the same in a good and habitable state of repair fair wear and tear and damage by fire lightning flood and tempest excepted and she keeping the same insured to its full insurable value against fire flood storm and earthquake to the satisfaction of my Trustee AND from and after her death I DECLARE that the said residence shall fall into and form part of my residuary estate."

3 In his affidavit of 12 July 1999 the first defendant sets out the current value of the deceased's estate. He gives the net value as $183,062.88. Of this amount, $54,715.25 is held in cash and there is approximately $28,000 in stock and shares. Furniture and incidental chattels are valued at $5,000. The value of the deceased's 50 per cent interest in the Mandurah property is put at $63,125. This valuation is based upon the average of two market appraisals obtained by the plaintiff's solicitors. The value of the Mandurah property was not in dispute.

4 Also shown as assets of the deceased's estate are a 50 per cent interest in a Nissan Pathfinder vehicle ("the Nissan vehicle") put at $17,500 and a sum of $14,632.95, being an insurance settlement obtained after a caravan was stolen from the Mandurah property. These two assets were in dispute. The plaintiff said that both the caravan and the Nissan vehicle were jointly owned by her and the deceased. It was her position that, as the property was jointly owned, it passed to her by survivorship on the death of the deceased. On behalf of the estate, the first defendant maintained that both the Nissan vehicle and the caravan were owned by the deceased and the plaintiff as tenants in common and upon the death of the deceased a half interest in both passed to the estate. I will deal with this issue between the parties later in these reasons. However, it would appear that the value of the half interest in the Nissan vehicle is overstated in the first defendant's affidavit. In cross-examination, the first defendant indicated that he thought that 50 per cent of the value of the vehicle was closer to $10,000. This issue was not revisited by counsel for the defendants in re-examination and, on balance, I am satisfied that the value to be ascribed to the 50 per cent interest in the Nissan vehicle is $10,000.

5 Although there was a deal of evidence filed by all parties in the action and although it seems clear that there is a degree of animosity between the plaintiff and the defendants, in fact there is very little in dispute between the parties, either with respect to the relationship between the plaintiff and the deceased or with respect to the circumstances of the plaintiff as at the date of the death of the deceased and at the moment. The plaintiff was born on 24 November 1927. She was just over 69 years of age when the deceased died and is at present five months from her 72nd birthday. She married the deceased on 1 December 1982. It was the plaintiff's third marriage. She had three children from her first marriage, none of whom are now dependent upon her and none of whom appear to have been dependent upon her throughout the course of her relationship with the deceased. At the date of his marriage to the plaintiff the deceased had one son, the first defendant, from a previous marriage. There were no children of the marriage between the plaintiff and the deceased.

6 Prior to her marriage, the plaintiff was employed at the Home of Peace, Inglewood, where she was in charge of the diversional therapy department. She owned a residential property at 18 Gray Street, Bayswater. Subsequent to the marriage she ceased working, she says at the insistence of the deceased. Furthermore, she sold her home in Gray Street, Bayswater, reluctantly she says, and under pressure from the deceased. The property was sold for $35,000, leaving her with a sum of $29,000 after paying out a loan of $6,000 to War Service Homes. The plaintiff says she used the proceeds from the sale of her property in Gray Street, Bayswater, and what she was paid on termination of her employment to make an equal contribution with the deceased to the purchase of a Viscount caravan. The rest of her funds were used for the purchase of household items and to pay for the cost of various trips taken in the caravan. Although it is not explicitly stated in the affidavit evidence, it would appear that the plaintiff and the deceased pooled their funds and acquired their assets from these pooled funds. There is no evidence that throughout the relationship the plaintiff and the deceased maintained separate finances.

7 At the date of the marriage the deceased was the freehold owner of a residential property at Lot 9 Craven Road, Mahogany Creek. For the first two years after the marriage the plaintiff and the deceased resided on the Mahogany Creek property and grew strawberries, fruit and vegetables and flowers and potted plants for sale. Although it is not entirely clear from the evidence, it would appear that this was a business undertaking which provided for the day-to-day needs of the deceased and the plaintiff. The Mahogany Creek property was sold in June 1984 for an amount of $117,000. The decision to sell the property appears to have been a joint decision of the plaintiff and the deceased.

8 In September 1984 the plaintiff and the deceased purchased a residential property at 253 Hawtin Road, Forrestfield, for an amount of approximately $102,000. This was a four acre property on which was constructed a residential dwelling. The property was purchased freehold from the proceeds of the sale of the Mahogany Creek property. The plaintiff and the defendant worked together to make the residence comfortable and to landscape and fence the property. They then set up a business growing wild flowers - everlastings in particular. They sold fresh flowers, dried flowers and seeds. Part of the proceeds of this successful venture were used for a holiday in Tasmania.

9 From time to time there were stresses and strains within the relationship between the plaintiff and the deceased. Perhaps the most serious of these ructions occurred in 1985 at around the time the deceased was in hospital for an operation on varicose veins. The result of this fight was a short separation, one of three which appear to have occurred during the course of the relationship. But these were isolated tiffs of no great moment. The picture that emerges from the totality of the evidence is of a couple who enjoyed a warm relationship, characterised by shared interests and companionship. There is certainly nothing in the evidence which could be regarded in any way as disentitling the plaintiff to make a claim under the provisions of the Act: see s 6(3).

10 In 1988 the deceased suffered a major heart attack and underwent by-pass surgery in December 1988. It then became apparent that the Forrestfield property was too much for the couple to handle and it was sold in January 1990 for approximately $260,000. Part of the proceeds of the sale were used to acquire a residential property at 15 Protea Court, Stoneville. This property was purchased in February 1990 for $160,000. Once again, the plaintiff and the deceased set about redecorating the residence and landscaping the grounds. These were shared endeavours and appear to have brought a good deal of contentment to both the plaintiff and the deceased.

11 During the time the couple resided at the Protea Court premises, the deceased was diagnosed with Parkinson's disease. With time, it became apparent that the property was too much for the couple to handle and they decided to sell and retire to Mandurah. The Protea Court property was sold in April 1994 for approximately $208,000. After the sale of the Protea Court property the Mandurah property was acquired. This property was registered in the joint names of the plaintiff and the defendant as tenants in common. This was the first time that the plaintiff's name had appeared on the title of any of the properties the parties had acquired while they were living together. The plaintiff says that she discussed having her name on the title to the Mandurah property with the deceased and he agreed. There does not appear to have been any dispute between the couple over this question. It is implicit that the deceased recognised the contribution made to the joint assets of the couple by the plaintiff and acknowledged this by having the plaintiff registered as a half owner of the Mandurah property.

12 The plaintiff and the deceased resided quite happily at the Mandurah property until January 1996. Thereafter the deceased experienced a bout of trembling and was hospitalised. He eventually lapsed into a coma and he passed away on 30 January 1996. During the time that he was hospitalised the plaintiff was with him as much as possible.

13 The plaintiff's financial position immediately prior to the date of the death of the deceased can be ascertained from her affidavit of 13 November 1996. She had a half interest in the Mandurah property which she valued at $64,000. Her affidavit shows that she claimed a half interest in the Nissan vehicle and she valued that half interest at $13,500. She had a Suzuki Hatch sedan she valued at $5,000. She had a bank account with a balance of just under $1,000. She claimed a half interest in a Jayco caravan she valued at $7,500. She put the value of her interest in furniture and other household and personal effects at just under $4,000. As against these assets, the plaintiff had no liabilities. Her only income was a Veterans Affairs pension which, at the date of the death of the deceased, paid her $258 per fortnight.

14 The plaintiff updated her financial position in her affidavit of 7 July 1999. She sold the Suzuki sedan in July 1997 for $5,000. She says that she has spent that money, together with the savings she had at the date of the death of the deceased, to cover day-to-day living costs. She presently receives $510.90 per fortnight as a pension and this, it appears, is inadequate to allow her to maintain the Mandurah property and live to a standard to which she was accustomed. Quite why the pension she receives is not sufficient to allow her to meet her needs is not detailed in the affidavit evidence. The plaintiff claims full ownership of the Nissan vehicle which she values at $19,000. She has a sum of $3,047.29 in a bank account. It is not entirely clear how the existence of this account balance squares with the plaintiff's evidence that she has spent both the savings she had at the date of the death of the deceased and the proceeds of the sale of her Suzuki sedan. The plaintiff also has a bank account with the Challenge Bank into which she paid the sum of $14,632.95, being the proceeds of an insurance claim when the caravan was stolen from her premises. The bank statements (Exhibit "J") show the insurance proceeds were deposited on 12 March 1998 and have been progressively drawn down to the point where on 5 July 1999 the closing balance is $231.30. This account is not mentioned in any of the plaintiff's affidavits. In cross-examination, the plaintiff explained that a number of the withdrawals from this account were to repay to her son amounts lent to her by him to allow her to meet her day-to-day expenses. Her evidence on this point was not entirely convincing. Nor am I satisfied that there was any reasonable explanation for the plaintiff's failure to discover her Challenge Bank account details and to explain in her affidavit what became of the funds deposited therein.

15 The second defendant is 24 years of age, his birthdate being 12 March 1995. He appears to have always enjoyed a good relationship with his grandfather. The second defendant is involved in businesses with a rural bent. He works part-time in the shearing industry and he sells fertiliser products. The fact that the deceased was a farmer means they shared an interest which provided a sound basis for their relationship. The second defendant does not appear to be particularly well placed financially. His affidavit of 28 June 1999 suggests that his liabilities exceed his assets by just over $23,000. The affidavit does not provide much information about his fertiliser business and very little further information emerged during cross-examination. The second defendant says that he has an eye condition which is degenerative and which will eventually require surgery. He says that this surgery can only be done in Sydney and would cost approximately $10,000. In closing, counsel for the plaintiff conceded that any order made should take into account this medical condition so as to allow the operation in Sydney to take place. The second defendant is not married and has no dependants.

16 The third defendant is 21 years of age, her birthdate being 12 October 1997. She married Roy Sarich on 7 November 1998. There are no children of that relationship. Prior to January 1999 the third defendant worked in a lunchbar owned by her husband. Since the sale of that business she has been unemployed, although she has recently gained employment in the retail industry at Carousel Shopping Centre. Her husband is now unable to work due to heart damage sustained in 1997. She and her husband are the registered proprietors of a property at Stevens Street, Sawyers Valley. The property was purchased for $235,000 and is unencumbered. The third defendant said in cross-examination that the home was purchased with the assistance of her mother-in-law. In her affidavit she shows a liability of $85,000 with respect to the property. The third defendant also shows, as a liability, a business loan from United Credit Union. It would appear that this loan was taken out when the lunchbar was purchased. On the sale of the lunchbar the proceeds were used to acquire the property in Sawyers Valley and not to repay the Credit Union. The plaintiff's affidavit discloses an excess of liabilities over assets of just under $20,000.

17 It became clear during the course of cross-examination that the third defendant's husband has quite extensive land holdings. He is the joint registered proprietor with his mother of a 46 hectare property which is located in Stoneville and was formerly an orchard. He also has a half interest in a property in Sorrento and a property in Swanview. The value of these property holdings is unknown. It may be that the third defendant was not aware of the extent of her husband's property interests. However, having referred to her husband's disability, apparently in an attempt to demonstrate need, it was incumbent upon her to make a full and frank disclosure of his assets, even if that entailed enquiry. It is a matter of concern that this was not done.

18 The plaintiff, as the widow of the deceased, is entitled to make this application under the provisions of s 7(1)(a) of the Act. The application then falls to be determined under the provisions of s 6(1) of the Act. That section reads as follows:

"If any person [in this Act called 'the deceased'] dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life or any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, 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."

19 It is well settled that dealing with an application under the Act is a two stage process. This was set out by Malcolm CJ in the oft quoted passage from Bondelmonte v Blanckensee [1989] WAR 305 at 307:

"On an application under this provision [s 6(1)] 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 ... "

20 It is important to note the time at which these two tests are to be applied. The question of whether or not adequate provision has been made for the claimant is to be determined as at the date of death of the deceased. If that jurisdictional question is answered in favour of the claimant, then the discretion so enlivened must be exercised based upon the position of the claimant as at the date the order is made.

21 The way in which the application of these tests is to be approached was considered by the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201. Mason CJ, Deane and McHugh JJ cited, with approval, Bondelmonte v Blanckensee (supra), and put the position as follows at 208 - 210:

"It is clear that, under these provisions, the court is required to carry a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought be made out of the deceased's estate for the applicant. The first stage has been described as the 'jurisdictional question'. ... That description means no more than that the court's power to make an order in favour of an applicant ... is conditioned upon the court being satisfied of the state of affairs predicated [in s 6(1)].

The first question is, was the provisions (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' an the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at p. 476. 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.

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 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."

22 The Court then went on to consider the nature of the two-stage inquiry. Their Honours said (at 210 - 211):

"Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. ... The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.

The decision made at the second stage, by contrast, does involve an exercise of discretion in the accepted sense."

23 Until the decision in Singer v Berghouse, the test to be applied in the first stage of the process was well-settled. In Re Allen (Dec), Allen v Manchester [1922] NZLR 218 Salmon J said (at 220):

"The [Family Provision] Act is ... designed to enforce the moral obligation of the testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of several claimants, and to the relative urgency of the various moral claims upon his bounty."

24 This formulation of principle was based upon the earlier decision of the Court of Appeal in Re Allardice, Allardice v Allardice [1910] 29 NZLR 959, where Edwards J said at 972 - 973:

"It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not loving, husband or father owes towards his wife or towards his children, as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears to be sufficient, but no more than sufficient, to repair it."

25 This test, the so-called "moral claim" or "moral duty" test was adopted by the Privy Council in Bosch v Perpetual Trustee Co Ltd [1928] AC 463. It has been consistently applied in this country up until the decision in Singer: see Hughes v National Trustee, Executors and Agency Co of Australia Ltd [1979] HCA 2; (1979) 143 CLR 134; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490; Coates v National Trustees, Executor and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494. However, the approach had been subject to criticism, particularly by Murphy J in the case of Hughes and in Goodman's case. However, in Singer the majority made direct criticism of the moral obligation test. After quoting in Re Allen; Allen v Manchester their Honours said (at 209):

"For our part, we doubt that 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."

26 Subsequent to the decision in Singer v Berghouse the status of the moral obligation test has been the subject of debate in a number of cases. In Gray v Harrison [1997] 2 VLR 359 the Victorian Court of Appeal rejected the comments of the High Court which they described as obiter dicta. The Court held that such comments could not displace a body of well-settled law. Their Honours determined that the law should be followed unless it was expressly overruled by the High Court. However, a majority of the New South Wales Court of Appeal took a different approach in Permanent Trustee Co Ltd v Fraser (1995] 36 NSWLR 24. Kirby P and Shellar JA, as a majority, expressed the view that the dicta in Singer should be followed. Handley J took a different view. His Honour said (at 32 - 33):

"A qualified applicant in need ordinarily established a moral claim on the deceased's bounty and a corresponding moral duty. The decisions on the old Act (Testators Family Maintenance and Guardianship of Infants Act 1916) and its equivalents did not require such an applicant to establish any wider moral duty. The need itself, and the deceased's ability to meet it gave rise to the relevant moral duty."

27 The position in Western Australia is unclear. However, two cases do give some indication of the present status of the moral obligation test. In Lacey v Lacey, unreported; FCt SCt of WA; Library No 980359; 25 June 1998 the Full Court considered the position of a widow who was separated from the deceased. The appellant and the deceased had lived together for a number of years and both had contributed to the assets of the family. When they separated the matrimonial property was sold and the proceeds were divided equally between the appellant and the deceased. They lived apart for some time prior to the death of the deceased, although they maintained contact and appeared to have enjoyed a relatively harmonious relationship. In his will the deceased made provision for the only child of the relationship, but did not make any provision for his wife, the appellant. Walsh J referred to both Allardice v Allardice (supra) and Singer (supra) without expressing any views in relation to the moral obligation question. His Honour concluded (at 13):

"In my opinion the undisputed material facts clearly established that the failure by the deceased to make any provision for the appellant in his will was in breach of the duty he owed to her and it is therefore the duty of this Court to make a sufficient order to rectify it.

I emphasise that, having regard to the particular circumstances which existed up to and after the parties separated, the rationalisation of their affairs in 1985 [sic 1995] including the sale of the matrimonial home, they having separated in December 1994, did not itself constitute justification for relieving the deceased of his duty to the appellant."

28 This reference in the ratio of the case to the duty of the appellant would seem to be a reference to the moral obligation test. By implication then, if not explicitly, his Honour has declined to follow what was said by the High Court in Singer.

29 The second case which is of assistance is the Full Court decision in Nelson v Nelson, unreported; FCt SCt of WA; Library No 990136; 9 April 1999. This was an application by a son in relation to the estate of his deceased mother. The son had contributed significantly to the estate by providing for his mother during the course of her life. The deceased, by her will, left her entire estate to her daughter. The son, the plaintiff, was reasonably well-placed. He was in steady employment and he owned two properties, one his principal place of residence, the other a holiday house. His sister, the beneficiary under the will, by way of contrast was in steady employment but had few assets and was comparatively poorly placed. I concluded at first instance that the plaintiff satisfied the jurisdictional question - that is to say, that the will of the deceased had not made proper provision for the plaintiff. On appeal, all members of the Court (Kennedy, Wallwork and Murray JJ) agreed with that conclusion. None of the members of the Court discussed the moral obligation test in the context of the jurisdictional question. It is, perhaps, worthy of note however that Wallwork J, providing the opinion of the majority, specifically refers to Re Allen (Dec) (supra) and Hughes v National Trustees Executor and Agency Co of Australia Ltd with approval. On balance then, it seems to me that the moral obligation test is still of force and effect in this State and in determining whether adequate provision has been made for the applicant the court has to consider what provision would be made by a just and wise testator.

30 Before turning to the jurisdictional question it is necessary to determine whether or not the estate has a half interest in the Nissan vehicle and a half interest in the insurance pay out in relation to the caravan. In relation to the Nissan vehicle, the evidence is thin indeed. The vehicle was purchased from Mandurah Nissan pursuant to a Purchase Agreement which appears as Annexure "G" to the affidavit of the plaintiff, sworn 7 July 1999. That contract is in the name of both the plaintiff and the deceased. It is clear that at the time of purchase another vehicle was traded in. Given that the plaintiff owned a Suzuki sedan, it may well have been the case that the vehicle which was traded in was the property of the deceased. However, there is no direct evidence on that point. Nor is it clear as to where the cash component of the purchase price came from. It may well have been from the joint account of the parties, but there is no evidence to that effect. On 23 September 1996 the executor's then solicitors wrote to the plaintiff's solicitors, Annexure "F", conceding that the Nissan vehicle was owned jointly and that it would pass to the plaintiff by survivorship. I doubt that too much can be read into that letter. It is appropriate for the executor, when uncertain as to the ownership of an asset to seek the direction of the court.

31 In the circumstances, I am satisfied that the Nissan vehicle does not form part of the estate of the deceased and that it was jointly owned by the plaintiff and the deceased. Given the paucity of available evidence, the way in which the parties conducted their relationship, that is the intermingling of their funds and the fact that they did not keep separate accounts suggests they regarded the vehicle as being jointly owned.

32 In relation to the caravan, the evidence is somewhat more substantial. When the plaintiff and the deceased married, the deceased owned a Baravan which the plaintiff says was of little value. Whilst living at Mahogany Creek, they traded in the Baravan and purchased a Viscount caravan. The plaintiff says that the cash component of this purchase was taken from the pooled funds of the parties. There is no evidence to the contrary. After the sale of the Forrestfield property, the Viscount caravan was traded in on the Jayco caravan. Once again, it would appear that the purchase price was paid in part from pooled funds. The contract for the purchase of the Jayco caravan appears as Annexure "H" to the affidavit of the plaintiff of 7 July 1999. In contrast to the contract for the purchase of the Nissan vehicle, this contract is made out in the name of the deceased alone. Nonetheless, it seems to me that in the circumstances, it is proper to conclude that the caravan was jointly owned. I have reached that conclusion largely for the reasons which I set out in relation to the Nissan vehicle.

33 I turn, then, to the jurisdiction question. I have set out above the financial position of the plaintiff just prior to the date of death of the deceased. When the deceased died she was left with a half interest in the Mandurah property and the right to reside in that property so long as she wished to do so. She had the Nissan vehicle and the caravan, as well as her own Suzuki sedan. She had modest cash resources and her only income was a pension entitlement of around $250 per fortnight. There is no evidence as to her then living expenses and it is difficult to know whether or not her day-to-day needs could be met from her pension. Given she was unlikely to use the caravan alone, there was at least a possibility of her selling both the caravan, her Suzuki sedan or the Nissan vehicle to raise any capital amount she needed. This realisation of assets would mean that the deceased could have expected she would have available to her around $20,000 in cash (assuming she told the Suzuki sedan and kept the Nissan vehicle - which in fact she did) to meet any contingencies.

34 The health of the plaintiff at the date of death of the deceased is clearly a relevant consideration. Some time after the plaintiff and the deceased moved to Protea Court in Stoneville, the plaintiff became ill with severe pain in her right leg. She was admitted to hospital and remained there for eight weeks undergoing extensive tests. These investigations found that she had suffered extensive nerve damage to her right leg. She has been left with a permanent disability and wears a calliper. Annexures "J" and "K" to the plaintiff's affidavit of 7 July 1999 are reports from the plaintiff's general practitioner, Dr S L Brabazon. Although it is not covered in detail, it would appear that by 1994 it was apparent that the plaintiff had some difficulties with her heart. The extent of these problems in 1996 is unclear, but what can be said is that the plaintiff was aging and she had some significant medical problems.

35 Of prime concern in determining whether or not at the date of the death of the deceased adequate provision was made for the plaintiff, must be consideration of two questions: First, how would the plaintiff meet her day-to-day living expenses and, secondly, how would she be accommodated in the future? As I have indicated, the plaintiff received a pension and, as a consequence of her ownership of her motor vehicle and the caravan, she had access to capital, albeit a limited amount. She seems therefore to have been catered for with respect to her day-to-day expenses. As to accommodation, the terms of the will allowed the plaintiff to remain in the Mandurah property for so long as she wished to do so. Thereafter, if she found it necessary to either move to smaller more manageable premises or into some form of care, she had two options. First she could sell the Mandurah property and use her half share of the proceeds of the sale to obtain some form of alternative accommodation. If she did not wish to adopt that course she could rent out the property and she would be entitled to the rental proceeds. As at the date of the death of the deceased there was no suggestion that the plaintiff could not and would not remain in the Mandurah property for the foreseeable future. Indeed, at the hearing it was not clear when or if the plaintiff would move from the Mandurah property. As her claim was originally framed, she indicated a wish to move to some form of retirement accommodation. However, during the course of the hearing and particularly during the course of the cross-examination of the plaintiff, it became apparent that the plaintiff did not want to move from the Mandurah property. She was finding it difficult to maintain the garden, but apart from that she was able to care for herself and she had no wish to sacrifice her independence by moving to some alternative facility. It is difficult to speculate when, if ever, the plaintiff will move to alternative accommodation. For the present she is satisfactorily accommodated in the Mandurah property.

36 Based upon all the evidence, I am satisfied that the will of the deceased made adequate provision for the plaintiff. As at the date of death of the deceased there was nothing more the deceased needed to provide to cater for the proper maintenance and support of the plaintiff. Put another way, he discharged the moral duty he had to provide for the plaintiff after his death. I would therefore dismiss this application. I will hear the parties as to costs.

(Family and Dependants' Provision) Act 1972

Randell v Randell as Executor of the Will of Herbert Samuel Randell

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (62 paragraphs)

Randell v Randell as Executor of the Will of Herbert Samuel Randell (Dec) & Ors [1999] WASC 146 (30 August 1999)

Parties

Legislation Cited (2)

Cases Cited (4)