Discussion
69It is necessary to see how Robyn says she has been left without adequate and proper provision for her maintenance, education and advancement in life.
70She submits to the Court that she should have the unit purchased by the estate and her share of the rest of the estate absolutely.
71It is useful to see why the deceased made her will in the terms to which I have referred. Shortly before her death, the deceased told Phillip Snodgrass:
"I don't think that Robyn can handle looking after a home and the ongoing expenses of looking after it. I'm worried about her hoarding and the possibility that it might get out of hand. I want the rest of you to help."
72She also said a number of things to Richard:
"I want to set up some sort of trust arrangement for Robyn with the rest of you as trustees because I am worried she will quickly spend any cash money left to her."
"I am worried that when I go Robyn will spend any money I leave her and will clutter up her property with rubbish."
"You and your brother and sister have to look after Robyn as best you can."
73It is plain that the plaintiff does have a problem with hoarding. The photographs of her home, although containing some things just moved there from her mother's home, plainly show this aspect of her personality.
74Given the closeness of the plaintiff and her mother, it seems likely that the deceased had a good reason for making the comment she did and for making the provisions that she did provide in her will for Robyn.
75Given the cross-examination on the expenditure of the money Robyn withdrew from her superannuation, it seems likely that her mother's fears about her spending any cash money left to her were quite justified.
76There is also evidence given by Phillip about the way he had to give advice to Robyn about overdue debts for some house accounts and how she was paying things by instalments. Apparently, she had her telephone cut off on various occasions.
77Robyn's claim has to be seen in the context of the other claims on the deceased's bounty. Her three siblings are all in difficult situations, with little chance of improving their lot in life. They also have some serious health issues. It should be noted that we are dealing with a claim by a child of the deceased.
78In McGrath v Eves [2005] NSWSC 1006, Gzell J referred to the Court's approach to the question of moral duty when considering claims by children to be provided with funds for a house. He said:
"67 When it comes to children, as Young J observed in Shearer v The Public Trustee, NSWSC, unreported, 23 March 1998, it has never been said by any court that the community expects a mother to leave her children in a position to have a house of their own. That observation applies equally to a father. And in Gorton v Parks (1989) 17 NSWLR 1 at 7, Bryson J pointed out that there is no special principle that able-bodied adults earning a living have no claim, his Honour pointing out that such a proposition in relation to resources of any size was quite erroneous.
68 In Barbara Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 419 at [109]-[110], White J, having referred to this passage, went on to observe that there was no rule to the effect that proper provision for an adult and presently able-bodied child did not extend to providing him or her with a house or money to buy one. His Honour noted that instances in which this had occurred included Re Buckland, deceased [1966] VR 404 and Ogden v Green [2003] NSWCA 352.
69 White J's decision was upheld by the Court of Appeal in Lloyd-Williams v Mayfield [2005] NSWCA 189. In the course of his judgment, Bryson JA at [31] pointed out that there were features to the case that were rarely encountered in claims under the Family Provision Act 1982 and rarely encountered together. First, the value of the shares designated as notional estate was very large in comparison with the estates ordinarily encountered. Secondly, because the appellant was otherwise amply provided for, the further provision ordered by White J could have no adverse effect on her wellbeing. Thirdly, the applicant did not have any needs in terms of lack of present provision for necessities and amenities of life on an ordinary scale of needs as understood in the community generally.
70 It was submitted that Mayfield was distinguishable by the absence of these features in the instant circumstances and because the appellant in Mayfield had filed no financial evidence and put forward no competing financial or other needs for the Court to consider.
71 There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order."
79Recently, the Court of Appeal returned to the subject in Fung v Ye [2007] NSWCA 115, where Young CJ (with whom Tobias and Bell JJA agreed) said:
"25 Returning to the present case, I must say that Gzell J's statement at [31] that '...there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one' may give rise to unreasonable expectations by future claimants. The statement is correct as far as it goes, but the statement would also be correct that in very many cases it will not be appropriate to provide a house, or money to buy one, to an able-bodied adult child. In each case one needs to consider the basic human right of freedom of testation of the deceased, the relationship between the plaintiff and the deceased, the size of the estate and the other claimants. I would venture to say that probably in the majority of cases the evaluation of that equation will not result in an able-bodied child being 'entitled' to a house or money to buy one."
80Certainly, because of Robyn's disabilities, she has a substantial claim on the estate. Providing her with access to a house would give her additional income of about $200 per week as she will no longer need to rent premises.
81The question of what is an appropriate provision, and whether a life estate should be awarded to persons in the situation of either a widow or a longstanding de facto partner, has been dealt with in a number of cases. Although we are here concerned with a claim by a child, the cases offer some guidance so I will refer to them.
82In the 1970s and 1980s there were a number of decisions of single judges of this Court where they have held that a life interest with particular attributes was appropriate. (See, for instance, Crisp v Burns Philp Trustee Co Ltd (NSWSC, Holland J, 18 December 1979, unreported); Banks v Hourigan (NSWSC, Waddell CJ in Eq, 2 March 1989, unreported); Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported).) This perhaps is reflected in matters mentioned by the High Court in White v Barron (1980) 144 CLR 431 where at p 444 Mason J said:
"A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy."
83He appears to be the only member of the Court to have adverted to this aspect.
84A change in the High Court's attitude to the provision for widows, no doubt in response to changes in community expectations, is illustrated by the fact that in this case it disapproved of observations made in Worladge v Doddridge (1957) 97 CLR 1 that as a general rule an order for provision in favour of a widow should be confined to widowhood. Stephen J, who was one of the majority in White v Baron, at pp 438-440 went to some lengths to point out that the jurisdiction was one which should not be unduly confined by judge-made rules of purportedly general application.
85In Elliott v Elliott (NSWCA, 24 April 1986, unreported), Glass JA said in reference to the above quoted statement at 9:
"The statement there made was in an evidentiary context where the provision was made at the expense of the children of a previous marriage who had some claim on the testamentary bounty of the deceased. The residuary beneficiaries here have none and it seems to me that no fairness is owed to them."
86McHugh JA agreed with his judgment and the President agreed substantially with the reasons given by Glass JA. He added nothing on this aspect. I do not think that it can be said that the Court of Appeal has adopted the statement of Mason J in White v Barron. All that can be said is that they distinguished the situation before them.
87By the late 1980s the judges in this Division were taking a slightly different view. For instance, in Court v Hunt (NSWSC, 14 September 1987, unreported) Young J said at 2:
"Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sorts of proceedings against that background knowledge."
88His Honour then went on to talk about the assumptions one could make about the fact that frequently people, once they pass 55, had to change their accommodation and locate themselves either in retirement villages or nursing homes, which have different requirements for capital contribution.
89After talking about the evidence necessary, his Honour went on to say at 3:
"In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a Court to alter a life estate to a more flexible noncapital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have had to be made by the widow."
90More recently the Court of Appeal on a number of occasions has referred to this problem. In Golosky & Anor v Golosky [1993] NSWCA 111, Kirby P summarised the proper provision for widows in the following terms:
"2. In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included:
(a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor, above, 458; Hunter, above, 576;
(b) The purpose of the jurisdiction is not the correction of the hurt feelings or sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher, Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81.
(c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69 to 70;
(d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided for will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984, per Hutley JA, 2;
(e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252."
91In talking of the need to provide a house and a sum for contingencies, Kirby P is clearly referring to passages in Luciano v Rosenblum (1985) 2 NSWLR 65. In the judgment of Powell J at first instance in Elliott v Elliott (NSWSC, 18 May 1984, unreported), his Honour said that such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. This seems to have been generally adopted over the years in many subsequent cases.
92In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 47, Sheller JA had the following to say:
"Once it is accepted that adequate provision for her proper maintenance and advancement in life required secure accommodation for life as well as a capital sum to meet exigencies, this need is not met by giving her only a life estate in the home unit. Commonly people in the community need to move from their own home into a unit in a retirement village and then into nursing accommodation and then into total care accommodation: see per Young J in Christie v Christie. The need can be met if the respondent is given the home unit absolutely. She then has greater flexibility as well as greater security."
93In Salmon v Blackford [1997] NSWCA 274, the Court of Appeal was dealing with the case where the trial judge had given a fee simple to the deceased's widow. Sheller JA said:
"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."
94No reference was made in either of these cases to the comments of Mason J in White v Barron. In Permanent Trustee v Fraser there were no competing claims by children of the first marriage. In Salmon v Blackford there were children of the first marriage but they appeared well off and their claims were thus minor.
95The caveat to be placed on these cases is that they concern the situation of a widow or widower. We are here dealing with a child whose claim is of quite a different order.
96In this case, considerations of the plaintiff's ability to handle money and a large asset is very important. Her brothers and sisters are quite sympathetic to her physical disabilities and wish to follow their mother's wishes to look after Robyn. In my view, they are well able to do so and it will be for Robyn's benefit to have them manage the house or any substituted house for Robyn.
97The other matter of importance is Robyn's difficulties in managing money. This indicates that the separate sum set aside to provide for rates and taxes should not be available for inappropriate discretionary spending. The powers are sufficiently wide to cover real emergencies if they do arise and the trustees can make provision outward for them.
98The form of what was agreed to in the deed is comprehensive and covers the case, if it arises, of Robyn having to move into residential care.
99Robyn is of course younger than her siblings and would have a greater life expectancy. This may mean that any remainder interest could pass to the defendants' children. Whilst I acknowledge this problem, I think that the other considerations I have mentioned lead me to the view that a properly managed life interest is preferable to outright ownership by Robyn.
100The question of hoarding is more a management issue. If Robyn continues to hoard, appropriate authorities - be it the council, the health department or the owners corporation - have powers to deal with any public safety or health issues caused by excessive hoarding if that in fact does happen.
101In my view, the deceased made the appropriate provision for the plaintiff at the time of her will. The defendants have generously renewed that provision to cope with the failure of the original gift. This has all been done by the defendants to their own personal financial detriment.
102Having regard to the deed, which still stands and governs the distribution of the estate, the evidence and the other matters I have discussed, I am of the view that the plaintiff has not been left without adequate and proper provision for her maintenance, education and advancement in life.
103Accordingly, I dismiss the summons. I order that the defendants' costs on an indemnity basis be paid or retained out of the estate of the deceased. I make no order for the costs of the plaintiff, to the intent that she shall bear her own costs.
104The exhibits can be returned subject to the solicitors' undertaking to keep them for any appeal period.
oOo
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Decision last updated: 02 November 2012