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."
26 As directed by the High Court, I turn to the plaintiff's financial situation. This has been somewhat difficult to determine because of the unsatisfactory nature of the evidence given by her. She is a lady of 71 years of age. When cross-examined the day before yesterday, it became apparent that she had little or no recollection of past events and her financial circumstances. Her answers demonstrated either a lack of her awareness of her financial circumstances, or were such that she hoped to avoid disclosing her lack of memory.
27 It became obvious that she totally relied upon her son Michael to manage her financial affairs. She had placed a property in his name and had lent him substantial sums of money. It became apparent that it was Michael who gathered the information which was in the plaintiff's affidavits where she disclosed her financial situation.
28 The sad but not uncommon spectacle of the plaintiff's lack of memory in the witness box was substantiated by other evidence in the case. This consisted of observations of the plaintiff by the defendant who, I am satisfied, was a careful and accurate witness. There was also some evidence of a similar nature from a friend, Mrs Draper.
29 Although Michael had sworn affidavits in the proceedings, they were not read and accordingly he was not cross-examined. Therefore, the Court does not have the benefit of his explanation of the situation with regard to the first plaintiff's assets.
30 Doing the best I can, the plaintiff's present assets appear to be as follows:-
31 There is a unit at Dubbo which was purchased on 30 June 2000 for $125,000. In her affidavit of 27 October 2000, the first plaintiff says that the unit was purchased in her son Michael's name with funds provided by herself. In para 4 she gives an explanation in these terms for so purchasing the unit:-
"The property was purchased in my son's name as I intended him to have the benefit of the unit on my death as he was looking after me."
32 There is in evidence the files of the solicitor who acted on behalf of Michael and perhaps the first plaintiff on the purchase. In a file note made on 3 May 2000, the solicitor, Joan Richardson, had this to say:-
"On 2 May 2000 I attended Michael Stone and his mother (Patricia Stone) when it was decided that it would be best if Michael purchased the property in his name but held it in trust for his mother. Patricia Stone will be providing the whole of the purchase money and will be the real purchaser. (See page 373 of the stamp duties book.)"
33 Normally, of course, there is a presumption of advancement from a mother to a child. (See Nelson v Nelson (1995) 184 CLR 538.) However, it would seem that given that evidence of intention to hold it in trust by the second plaintiff and, in fact, beneficially hold it for the first plaintiff, the presumption of advancement would be rebutted. Therefore, she would seem to me to have this asset.
34 There were several loans which were owed by her son to the first plaintiff. Exhibit 4 records a loan of $50,000 which was subject to a $1,000 repayment every three months. The deed was made 6 June 1997. In an affidavit sworn on 8 February 2000, the plaintiff said that the loan was $40,000.
35 Although there was cross-examination of the plaintiff and she may have made admissions that there were two separate amounts, it seems to me that I can place no weight on that cross-examination or what she might have said in it. The more likely thing, given the timing difference and the provision for repayment, is that the loan probably was one for $40,000.
36 She has a balance in her cheque account of $22,353; she has an interest bearing deposit of $14,000; a Ford Falcon worth $20,000; furniture at $20,000; personal effects at $5,000 and a truck which may or may not be part of the partnership assets.
37 She also has the interest in what has been described as the three-way partnership. In other words, the partnership between herself, the deceased and her son. That was also estimated in her affidavit at some $25,000 or so but clearly it is more than that. The deceased's interest in that partnership was carefully outlined by the defendant in her affidavit and adopting the same methodology that the defendant adopted but, in fact, using the figures in the current partnership accounts, particularly in relation to capital, one would find that the likely interest is some $92,452. That takes account of a quarter share of the property which appears to be valued at something like $220,000.
38 So far as her interest in the partnership between herself and the deceased, a similar exercise was undertaken in the submissions producing a similar sort of figure. However, it seems to me that that is an error because, in fact, what has happened is that the land and the Suvla property has been sold and those funds received by the defendant have already been used and have gone into the Dubbo unit. Really all that is left there is a share of the plant and equipment and some wool stock shares. Perhaps interest would be in the order of $13,000.
39 All in all, they are the assets that the plaintiff has in her own right, or in trust, in the sum of $306,805, plus her car and furniture and other incidentals.
40 Her income has been dealt with, once again from information supplied by Michael which I do not doubt that the plaintiff, for the purpose of instructions, verified with the solicitors, and that indicates an annual income from her interest in the partnership with her son of $9,600. Her interest bearing deposit is about $480 per annum. She has the ability to earn income of $17,000 from her income from the Dubbo unit. Her estimated monthly expenditure is in the order of $1,099 per month which, on an annual basis, is $13,188. She, thus, on the figures will have some surplus of income, although she has not yet let the unit to achieve this.
41 An important thing to take into account in matters of this kind is, of course, any contributions that might have been made from the estate of the deceased by the first plaintiff. In her affidavit of 8 February 2000, she sets out these and they are substantial. In particular, she received two sums of money, approximately $100,000 from the estates of her late parents and $168,000 from the estate of her late uncle, Jack Matthews. That was received in 1993. $45,000 was spent in renovating the house at Peak Hill. Bearing in mind that the house now, given country prices, is only worth $75,000, the renovations were substantial.
42 She has also provided for the purchase of other improvements. There are sheep on the farm purchased for $20,000; a farm truck for $15,500; farm tractor for $21,500; shearing overhead gear $2,000; sheep grate $1,000. She also paid $19,000 to clear the farm debts. These amounts total some $79,000. She had spent other funds, such as for the purchase of a new car and advances to her son. Obviously, of course, through the partnership and the way it was structured, particularly with the interest in the partnership, some of these funds will come back to her. The contributions from the use of those assets supplied by the plaintiff must be substantial.
43 I turn to the situation of others who have a claim on the testator's bounty. The first is the only relevant one for the purpose of this application, the daughter of the plaintiff, the defendant. She is 44, single and with no dependants. She is employed presently at Port Macquarie as a store person with a net weekly wage of $357.60. She receives from an investment the sum of $134 per week. Her total income is $491.60 and her expenses slightly less than that, which she estimates at $480. She lives in rented accommodation.
44 She has only a few assets. She has an AMP diversified share fund, some $87,375; a bank account with a few hundred dollars; and old 1979 Holden station wagon worth $500; an unregistered Torana motor vehicle; she has some superannuation of $13,334. She has about $4,000 in liabilities.
45 Her relationship with the deceased is, of course, important. As I have mentioned, it was in 1974 when she left home to go to work in Parkes. She boarded there during the week and would always come home at weekends. In 1979 she formed a relationship with a gentleman and in 1981 they purchased a home where they lived together in a de facto relationship. Although this lessened her visits to her parents, these visits continued to occur. Ultimately, that relationship finished in 1990 and the defendant moved to Port Macquarie in 1993.
46 In 1998-1999, the defendant had a substantial role in looking after the deceased. She spent time at Peak Hill caring for him and also she was instrumental in having him attended to and receiving appropriate medical care - something which was not happening for him at Peak Hill. In my view, the relationship clearly was a good one between the deceased and his daughter and she did the things that a daughter would normally do in that situation, particularly having helped him extensively when she would come to the farm.
47 The next question in this case is the relationship between the plaintiff and the deceased and there are a few fundamentals which have to be observed. Firstly, it was a relationship of 44 years duration. The deceased and the first plaintiff lived in the house in the town of Peak Hill. He worked on the property and she looked after the family at home. They could have at some stage moved out of town to the property, which the deceased wanted to, but they did not and the deceased continued to accept the arrangements for living in town.
48 In the early 1990s, the first plaintiff received substantial sums, some of which she spent on the property. She also kept funds herself and would use these for things which the deceased probably thought inappropriate. The amount of the money was quite substantial in terms of what would have been available to the first plaintiff and the deceased for many years in the earlier part of their marriage and this may well have created tension. This is referred to in the note of the deceased.
49 It was also apparent by the end of the 1990s that the deceased had had enough of the farm and he wanted to retire.
50 The parties in evidence tended to concentrate on whether the plaintiff used bad language, rather than what really caused the falling out between the parties. To my mind, I think a lot of the problems that occurred in the last year or two were probably as a result of the deterioration in the mental process of the plaintiff. There were difficulties in her recognising the deceased's illnesses and there were difficulties with her recognising what was appropriate treatment or what was wrong with the deceased.
51 So far as language is concerned, what few witnesses the plaintiff called in her support would not have had the opportunity to see what was happening over the last three years. There were a number of witnesses on this issue who were, for good reason, not cross-examined. Because of this, the nature of the affidavits and the doubts about their ability to make relevant observations, I find that evidence unhelpful.
52 Generally, I accept the defendant and do not accept the plaintiff's denials about the use of language. I have no doubt that there was use of bad language at home. However, I do not regard that as a very important part of this case.
53 It seems to me that many of the difficulties related to the failing health of the plaintiff and her perceptions of the deceased and inability to understand his needs.
54 A factor which also greatly affected the relationship between the first plaintiff and the deceased was, in fact, the falling out between the deceased and their son. That, as well, precipitated the difficulties. Clearly enough over the last year there was a major breakdown. However, the significance of that is not substantial.
55 Widow's 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 NSW LR 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 unforseen contingency or disaster that life might bring."
56 Here we do have a long relationship. It had an unfortunate ending in the last year or two and that, to my mind, is not of great significance. There was a substantial contribution which was made by the plaintiff, particularly towards the home and from her own funds. Clearly she needs a house and accommodation. The defendant herself conceded this at the very start of the litigation and also the hearing before me. The question that arises is what else is appropriate.
57 With the house and costs taken out of the estate, there is about $165,000 left in the estate. The partnership with her son is dissolved but there has not yet been a liquidation of its assets. It seems to provide a substantial income for the plaintiff and may well continue in a different form in the future. If that were the case, then it may continue to provide her with a reasonable income. Although she does have the unit at Dubbo, it is needed to produce her income and I have taken this into account in looking at her needs on a weekly basis or monthly basis. Basically, she has little by way of a fund for contingencies of life.
58 In general, I think there should be available for her:-