SALMON and ANOR v BLACKFORD

Court of Appeal (NSW)|1997-02-18|Before: Sheller JA, Young J

SALMON and ANOR v BLACKFORD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 18 February 1997, 18 February 1997 [1997] NSWCA 274

Family Provision Act 1982 - widow's application aged 75 - deceased's second marriage - opposed by three adult daughters of first marriage - matrimonial home

order giving fee simple to widow - proper discretionary judgment

He was survived by his second wife, the respondent, Iris Helen Blackford, who was born on 29 July 1919 and whom he married on | September 1961 and by three daughters of his first marriage, Pamela Ann Salmon, who was born on 13 June 1942, Suzanne Gai Shepherd, who was born on 24 August 1944, these two daughters being the appellants in this appeal, and Dianne Lynn McKenzie, who was born on 16 October 1950.

The respondent has a son whom she adopted in March 1947 during her first marriage to John William Goode. The son was born on 24 March 1947. She divorced her first husband in 1955 and he died in 1989. The evidence is that when she married the deceased he would not allow her son to come and live with them.

Probate of the deceased's will dated 23 August 1968 and a codicil thereto dated 21 March 1975 was granted to the appellants on 13 February 1992. Relevantly the combined effect of these testamentary documents was to devise the residence at Wahroonga and its contents upon trust for the respondent during her lifetime or until she should remarry subject to the payment by her of all rates, taxes, insurance premiums and repairs thereon and to declare that from and after her death or remarriage the same should fall into and form part of his residuary estate. The residue of his estate he left to his three daughters in equal shares in the events which have happened.

On 12 November 1992 the respondent filed this application for provision under s7 of the Family Provision Act 1982 out of the deceased's estate. Young J heard the application on 27 July 1994 when he made the following orders:

"1. That in lieu of the provision made for her out of the Will of the Late Harry John Gilmore Blackford the Plaintiff receive the realty of 24 Kallang Parade, Wahroonga in fee simple, the 1991 Nissan sedan number CXX-555 and the sum of $55,000, such sum not to carry interest if paid before 26th August, 1994, otherwise to carry interest as a legacy.

The costs of the Plaintiff and the costs of the Defendants on a trustee basis are to be paid out of the estate."

The appellants' appeal is against that part of the orders whereby the widow, the respondent, received the residence in fee simple.

At the hearing before Young J, the appellants conceded that the provision made by the deceased for the respondent in his will and codicil was inadequate. The only question for the trial Judge was the type of order which should be made.

At the date of the hearing the respondent was aged seventy-five and apart from some breathing problems she was in good health. She was living in the former matrimonial home, and had an income from superannuation which his Honour put at about $545 per fortnight. The evidence suggests that it may have been slightly more than this. In either event her expenses were about the same as her income.

His Honour described the three daughters of the deceased as all ladies who had made successes of their lives. Each was married and, according to his Honour, was earning or had the capacity to earn above the average in the community.

Two of them each had two children, the third was childless. His Honour observed that the children were at a stage where it would not be too long before they would cease to be a drain on the daughters' resources. His Honour said:

"They are not in one sense wealthy people; doubtless extra money would be useful to them. But each has a house and a high standard car and some other property as well, which would mean that if there were not enough in the estate the testator's wishes for his daughters would have to be sacrificed to his prime consideration, his widow of thirty years".

So far as the residence was concerned Young J postulated three choices. First, that the widow should have the house in fee simple; second, that there should be what is apparently called in these cases a Crisp order made, that is an order permitting the widow to live in the house as long as she wished and then with a sliding scale of provisions enabling her to change to a home unit and then to a retirement village and then to a nursing home, and at the end any residue passing to the other beneficiaries; and third, that a trustee could be appointed under s15 of the Family Provision Act so that any conflict between the parties because of their bad relationships, which might be inherent in the Crisp provision, could be obviated. However, his Honour said any trustee that came in between "these two warring factions" would need to be remunerated for his or her trouble and this would be a cost on the estate. His Honour said:

"Tt seems too that for a widow of a thirty year marriage, who has lived in the house for some time and who continues to wish to live there, the expectation in the community would be that a wise and just testator would have left her the house in fee simple. I will make that order'.

His Honour went on to provide that she should receive the car and a legacy of $55,000 less a deduction of an amount of some $5,400 provided to her by way of loan.

In approaching this appeal I must bear in mind that the first of what was described in Singer v Berghouse (1994) 181 CLR 201 at 210, as a two stage inquiry has been conceded in favour of the respondent. What remains is the second stage which involves an exercise of discretion by the trial Judge. The appellants are confronted by the task of persuading this Court that Young J made an entirely erroneous estimate of what, in the circumstances, was an adequate provision for the respondent's proper maintenance. In Singer v Berghouse at 22, the majority in the High Court quoted with approval the comments of Kirby P in Golosky v Golosky (unreported) New South Wales Court of Appeal, 5 October 1993 at 13-14:

"Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

The appellants have filed written submissions and those have supplemented by Mr Gibb in oral submissions. As I understand the argument, it is said that for one or other of various reasons advanced in this case the exercise of discretion miscarried. The principal point according to Mr Gibb was that his Honour failed to take into account that by reason of the widow's advanced years and the probability that her adopted son would be the natural object of her bounty, the effect of the order made was likely to be that the adopted son, whom the deceased had no intention to benefit, would be the beneficiary of half the estate. I have great difficulty in seeing how a submission of this sort has any weight in the circumstances of this case.

The matter that this Court must consider is whether the order that his Honour made was in such terms that one could only come to the conclusion that in some way his discretion must have miscarried. It is well established that proper provision is not to be measured solely by the need for maintenance. It should, in the case of this respondent and in the circumstances of this case, free her mind from any reasonable fear of any insufficiency as her age increases and her health and strength fails. I may say in this regard that her life expectancy, according to the tables, was something over eleven years at the time of the hearing. If one comes to the conclusion that for her proper maintenance an order such as the present is appropriate, it seems to me to matter not at all that she has an adopted son of an earlier marriage and that he may be the ultimate beneficiary of her bounty.

The significant matters in the present case seem to me to be that, apart from her immediate need which is demonstrated by the evidence, she had lived as the wife of the deceased for over thirty years and has shown by her evidence, at least the contrary has not been suggested, to have devoted herself to his welfare and has contributed during that period as a home maker, see s9 (3) (a) of the Family Provision Act. The size of the estate enticed her to be left with security and independence. The proposals which his Honour considered and which the appellants now put forward that she should have something like a Crisp order to my mind compromises both her security and her independence bearing in mind particularly the conclusion that his Honour came to, and was enticed to come to, about the relationship between the parties.

His Honour referred to the adopted child and his age and circumstances. That was a matter which was taken into account by him but, in my opinion, reference to it does not affect the appropriateness of his Honour's order.

The second point made was that the trial Judge failed properly to address the alternative orders. Amongst other things, it was said that there was no evidence of disputes between the parties, no such evidence had been given by the respondent. In any event the appointment of a trustee would have overcome that problem. It was suggested that his Honour preferred the course that he did simply because he came to a conclusion about the relationship between the parties which was not justified. I do not agree with this submission. In my opinion, for reasons that I have already given, the position of the respondent justified the order that his Honour made and entitled his Honour to prefer the course he took to those

others which were put before him and which he took into consideration. I am not persuaded that his Honour was under any misapprehension as to the true relationship between the parties on the evidence given before him.

The appellants went so far as to suggest that his Honour's judgment was tainted by the notion of a bad relationship. I do not read the judgment in that way and so far as I am concerned that submission is not made out.

Mr Gibb then referred to the position of the three daughters of the deceased and suggested that his Honour had misunderstood their position and had overstated their security and wellbeing. I do not accept this submission. It is, I think, significant that in each case the evidence given by the daughters was incomplete as to their financial position. All are married. On the face of it, it appears that only part of their financial position has been disclosed.

I am not persuaded that his Honour's orders were manifestly unreasonable or that there was any significant error of fact in the findings that he made. However, it matters not whether I agree with the particular orders that his Honour has made. As I indicated earlier in this judgment, it is up to the appellants to persuade this Court that the orders made involved an entirely erroneous estimate of what was adequate provision for the respondent's proper maintenance in the circumstances of the case. For reasons that I have set out I do not regard the appellants as having achieved this level of persuasion.

Accordingly, in my opinion, the appeal should be dismissed with costs.

Powell JA I agree and would not wish to add anything. Cole JA I also agree. Sheller JA: The order of the Court will be as I have announced it.

At a glance

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Judgment (32 paragraphs)

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Cases Cited (1)

Cited By (11)