B. The result of the claims
75 (4) The claim of Domenica. Domenica, under the will, would receive slightly more than half the estate. The only other property she has is from superannuation, furniture and a motor vehicle, about $53,000 in all. She contributed to the deceased's fortune, in particular she contributed 53.3% of the purchase money. Were it not for the benefaction under the will she would have received, in her own right, $181,800, but it may be fairer to look at the $438,906 second mortgage as being part of the value of Annangrove in which case her interest under general equity would be worth $415,737. It would seem to me almost axiomatic that she should not receive less than that sum from the estate. The marriage was a relatively short one. They were only married for two years nine months and were only in a relationship for four years nine months.
76 Domenica is still only 39 and has worked all her adult life and is still working. She earns $1,341 a week. She says her expenses are $1,339 per week but this includes $694 a week for the mortgage on Annangrove and rates on that property, so that if she had no mortgage she would have ample income. I assume that the Annangrove place will have to be sold. She says, and she was not cross-examined on this, that she would like to continue to live in the Castle Hill area and because that place is so far from the CBD she would probably seek employment closer to her home. She says that houses in the Castle Hill area would cost approximately $900,000.
77 It was odd that there was little evidentiary material presented to the Court as to what sort of accommodation would be reasonably thought by a testator to provide a suitable residence for a single woman without dependants, or the cost of such accommodation.
78 Domenica's counsel referred to the well-known statement of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69, that normally the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home and has sufficient income to permit her to live in the lifestyle to which she is accustomed. Subsequent cases have watered down that statement but it still remains essentially true. One has to, of course, evaluate the other claims, but with an estate worth a mere $810,000 of which she would have been entitled in equity to $415,000 in any event, there is a fairly strong case for her receiving the whole of the estate. I will thus return to this claim in heading (8) after analysing the other claims.
79 (5) The claim of Kerrie. Kerrie is 54 years of age. She commenced work at 16, was engaged to the deceased at 18 and married him when she was 20 in 1970. She and the deceased were married for 30 years. She says that during the marriage the deceased left it to her to bring up the children and he was either studying for further qualifications or out the majority of nights. She currently works in the gaming industry as a self-employed person.
80 There is material to suggest that by 1998 Kerrie was dissatisfied with the marriage and that it was she who initiated the separation. However, the separation was, it would seem, relatively friendly, and the parties drew up a document (which was initiated by the deceased) in which they agreed to a split of their property.
81 Kerrie now says she realises that she only received about 32% of the assets and she should have received somewhere closer to 50%. She commenced proceedings for property adjustment in the Family Court in 2002, but never served the proceedings before the deceased died. She said that she did this because she did not want to upset him by serving the application and trusted him to make provision for her. The proceedings were served after the deceased's death and were transferred to this Court under the cross vesting legislation, and by consent I dismissed them on the first day of the hearing before me.
82 I should note that under the Family Provision Act, Kerrie is an applicant within class (c) of the definition of eligible person, and under s 9(1) the Court is first to determine whether in regard to all the circumstances of the case, there are factors which warrant the making of the application. I should state, in case the matter goes elsewhere that I do find such factors principally because the Family Law property relations of the parties were not finalised at the time of the deceased's death and there had been a very long marriage.
83 It was put to Kerrie in cross-examination that she was a person who had a gambling problem and that she was closely involved with a Mr Pearson, another person with a gambling problem.
84 There is no doubt at all that Kerrie is working in "the gaming industry", though she would have it thought that she is merely a sales person on commission. There is also no doubt that she is associated with Mr Pearson, though the evidence does not enable me to find that there is any close relationship or that Mr Pearson encourages her to gamble.
85 In her affidavit she says of her association with Mr Pearson at various clubs in January 1999, "We have been in a relationship in that we socialised together and spent odd weekends together. I do not regard him as involved in my life. I receive no financial support from him." Kerrie was cross-examined about Mr Pearson. Some of the evidence she gave was very hard to accept. While she denied that she had a gambling problem or was an habitual gambler, she did acknowledge she spent substantial amounts of money on poker machines on the speculation she would get dividends. She would also lend Mr Pearson money so he could make the same "investments". On one day she drew out four sets of $200 from her bank account for the poker machines. She said that she gave this to Mr Pearson for him to "invest" and that he would have repaid her, but I was not shown any record of the money coming back into her bank account.
86 Kerrie says that she would like to retire at 55; she feels very tired and she and the deceased always intended that they would retire at 55.
87 Mrs Cominos who appeared for Kerrie put that this was not a case where there had been a complete break on the dissolution of the marriage as the Family Court proceedings were still in the air. In one sense this is true. It may also be true that Kerrie did not receive as much as she could have received from her husband on the separation, but notwithstanding this she did receive, on any view of the evidence, over $300,000. Of course, she had to house herself with this, but it was a substantial amount. However, even though Kerrie was a wife for 30 years as opposed to Domenica for two and three-quarter years, and Kerrie was responsible for bringing up the children, it seems to me that her claim in the light of the fact that the estate is only $810,000 and she has already received what she agreed to accept on the split with the deceased hers is not to be considered the paramount claim.
88 (6) The claim of Cameron. Cameron is now aged 30. He has no dependants. As I have said, under the will he receives, on my calculations $188,000. He is an able-bodied man. He has done little to improve himself. He was apprenticed in the air conditioning industry for six or seven years but never received his ticket. He said he couldn't handle the paperwork side of it, but was good at tools. He worked in the air conditioning industry until about 1996 at perhaps $700 a week. Since 1996 he has never had a regular job, but he was involved with the deceased's fishing business. He has now left the fishing industry. He describes himself as a self-employed arborist. That really means he is lopping or felling trees for a living in casual employment.
89 I would have thought that an able-bodied son of 30 without dependants being left $188,000 in a will was being properly provided for and that what must happen is that that amount must be decreased rather than Cameron's share increased.
90 However, this $188,000 is rather illusory because Domenica's claim will severely diminish it.
91 It would be unjust to leave Cameron without anything. He is a son of the deceased who was recognised by him as worthy of benefaction.
92 Where the Court makes an order for provision under the Family Provision Act, s 10 of the Act allows the Court to make another order for provision in favour of any other eligible person, where the Court thinks it necessary to adjust all the interests concerned and to do justice in all the circumstances; see eg Shaw v Lambert, Young J, 9 October 1987, unreported.
93 In view of the probable size of the net estate, I would consider that the community would expect a wise and just testator to give Cameron a legacy of $50,000 to advance him in life.
94 The figure is rather arbitrary. It would be more if the estate were richer. However, he needs a fund to enable him to qualify himself for some better employment and as a safety net.
95 Accordingly, for the reasons stated above, I would apply s 10 so that Cameron should receive $50,000 from the estate.
96 (7) The claim of Matthew. Matthew is now aged 32 without dependants. He again has not done much since leaving school. He said he did various unskilled jobs such as storeman and labouring and he is still looking for what he wants to do. The week before the hearing he obtained a job (with a company called Maritime Defence Services) on the strength of the fact that he had a skipper's ticket. He is single; he has virtually no assets. He also was involved with the deceased's fishing business.
97 Matthew is slightly more established than Cameron. However he is basically in the same position and his claim should be treated in the same way - a legacy of $50,000.