The order as originally tendered to the Registrar did not include the words in order 3 "Note the intention of the parties that".
7 I have serious concerns about such orders being made. I recognise that some such provision may need to be made to induce a person to act as defendant. Unfortunately it may give the impression that the defendant has a carte blanche to spend as much as he likes on the defence in the knowledge that he will be indemnified in full. It would be better merely to note that the plaintiff will consent in due course to the defendant's reasonable costs and expenses on the trustee basis being paid out of the estate.
8 I do not remember seeing any material as to how Mr Bruno Travini came to be chosen as defendant or how he is in relationship if at all to the residuary beneficiaries.
9 However, a cynic would say, armed with the knowledge that he was going to get his reasonable costs on the trustee basis in any event, Mr Travini took extremely literally the various utterances of members of the Court of Appeal over the years that an executor's duty in a Family Provision Act application is to put before the Court all the necessary material that can reasonably be found and to uphold the will. For this purpose he not only obtained evidence from Croatia by affidavit (for which no-one can criticise him), he also spent time and effort issuing subpoenas and instructing counsel to closely cross examine the plaintiff.
10 It is certainly true that there are many decisions which say that the executor's duty is as I have set out. They are summarised in Professor Dickey's book Family Provision After Death (LBC, 1992) p 183 and the principal decisions are Vasiljev v Public Trustee [1974] 2 NSWLR 497; Dijkhuijs v Barclay (1988) 12 Fam LR 367 and Warren v McKnight (1996) 40 NSWLR 390.
11 However, it must be remembered that the utterances of the learned Judges in those cases were directed to a particular point. Whilst the law is that the executor is expected to put before the Court all material necessary for the Court to make its decision, none of the Judges ever thought when they were saying this that any executor would take into his head that he must defend Family Provision Act proceedings as if they were a jury trial in a fraud case. Furthermore, as is plain from judgments such as Jackson v Riley Cohen J, 24 February 1989, unreported and Propert v O'Connor Master Macready, 29 July 1994, unreported, there is a duty upon practitioners, and this attaches to defendants as well, to compromise claims in relation to small estates and to be careful when presenting evidence not to allow the costs of the defence to exceed sensible proportions. Accordingly, although the executor has the duty in the authorities, he or she must be careful to have a due sense of proportionality. These days, executors in a small estate would be expected not to look under every bushel for evidence, but to put forward before the Court the essential material and to seek to compromise, if at all possible, in a way that would save both the plaintiff and the other beneficiaries' costs.
12 Furthermore, in the instant case the position taken by the executor in upholding the will completely ignored the fact that such a position did not benefit the residuary beneficiaries one whit. If the will was kept in its existing form, then the remaindermen, one of whom is 74 and the other only survived the testator by three months, would not receive any benefaction probably for about 30 years. However, a compromise of the litigation or even if the plaintiff won, would probably see monies flowing into their purses much earlier. The defendant took the view that this was quite irrelevant because his duty was to uphold the will. Again, in my view, this was completely misguided. An executor (or a nominal defendant) has a duty to uphold the will but not to the stage where it is of no commercial benefit to anybody to do so, and certainly the cut-off point is before one reaches that stage.
13 The other problem with the defendant's case was this. The proceedings were commenced in mid-2002; they did not come on for hearing until mid-2004. The plaintiff's affidavit gave some narrative as to why she was a de facto widow. This material was not in properly admissible form.
14 It has been the practice for some years in order to minimise costs (an aim which has not been achieved), Judges and Masters permit evidence to be filed in small estates which is not in precisely admissible form according to Hoyle such as narrative statements by plaintiffs, statements of value by estate agents rather than formal valuations by valuers and the like. If it appears that material in this category is of vital importance to the case, then that message is signified to the Registrar and thereafter the parties comply with the strict rules of evidence. In the instant case, the plaintiff's evidence as to her de facto relationship was in narrative style and a lot of it was inadmissible in strict form, but at no stage did the defendant inform the Court or the plaintiff that her status as a de facto wife was in issue until objections were made to the affidavit of the plaintiff at the trial. This trial by ambush is not permitted. A person who can see that the other side has made assumptions as to what is or is not in issue is under an obligation to put that assumption at rest. If the status of a plaintiff as an eligible person is in issue that must be signalled.
15 The consequence of signalling the defendant's attitude only at the trial was that if the objection had not been withdrawn (as it was after counsel took instructions), I would have had to grant an adjournment because the plaintiff would need not only to have filed a supplementary affidavit putting her evidence in proper form, but she may also have needed to have obtained evidence from friends dealing with the fact, if it be the fact, that they saw the deceased and the plaintiff in such circumstances as the Court may infer they were living as husband and wife.
16 The objections to the narrative were withdrawn. However, the defendant maintained the position that the plaintiff must prove that she was the de facto wife of the deceased. She was criticised in addresses in not putting forward independent evidence. However, I discounted this because the way the case was run she was not alerted to the necessity to do so.
17 I hope that what I have just said will lead to more clarity in subsequent cases.
18 I now return to the facts of this case. The first matter is to deal with the submissions that were made as to the construction of the will because unless one can see what is the provision made for the plaintiff by the will one cannot continue to examine whether she was or was not left without proper provision for her maintenance etc.
19 The first matter raised was the nature of the estate given to the plaintiff by the will. In broad terms it was a life estate. However, it was very much curtailed by the conditions. The will provided that the plaintiff was to pay for the "maintenance and upkeep" of the property. These two words "maintenance" and "upkeep" are broadly synonymous; see eg Re Strickland's Will Trusts [1936] 3 All ER 1027, and both to my mind connote doing the works that normally fall to a life tenant rather than a remainderman, that is, doing the works of keeping the property in good condition, but not having to pay for capital repairs such as renewing a roof, renewing a hot water system or any renovations.
20 The testator has not made any provision as to what is to happen to these capital expenses and presumably a fund needs to be maintained to look after them. Mr Dupree, who appeared for the defendant, said that that fact supported his submission that on a true construction of the gift "secondly", the payment of the $50,000 to the plaintiff and the payment of the balance to Gilda and Maria was only to take place after the death of the plaintiff. That submission makes some sense.
21 However, the proper construction of the gift secondly is clearly that it is the balance of the estate including the remainder in 156 Hillcrest Avenue, that is the totality of what is to be given to the plaintiff and the deceased's sisters. It would be absolute nonsense that the plaintiff was only to be paid $50,000 after her own death.
22 Accordingly, in my view, the will gives to the plaintiff a type of life estate on conditions plus $50,000. The plaintiff as executrix would need to keep a fund to provide for capital works to the property and after putting aside that fund, pay the balance in equal shares to the sisters of the testator and in due course the sisters would also get a conveyance of the Bankstown property.
23 There is, of course a minor discrepancy in that the will does not say what is to happen to the property between the time of the plaintiff vacating the Bankstown property or otherwise not fulfilling the condition and her death, presumably the property has to be rented and the intermediate income would be paid to the sisters before they took the capital or it may be that the rule in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482 would apply so that they could call for the capital upon the breach of condition. I do not need to delve into this area.
24 Accordingly, the first question is whether the "sort of life estate" given to the plaintiff plus $50,000 was proper provision for her maintenance and support etc.
25 The plaintiff migrated to Australia from Germany in 1954 when she was 16. She first met the deceased shortly after arriving in this country: he was then 27.
26 The plaintiff and the deceased became engaged in January 1959. There was some family resistance to their marriage, it would appear mainly because of the age difference between the parties and in January 1960 the plaintiff broke off the engagement and she and her parents went to live in Germany. The evidence shows that the parties endeavoured to write to each other but for some reason or other their letters were not received. In the first part of 1962 the plaintiff returned to Sydney and married a Mr Feiersinger with whom she had two children. She divorced Mr Feiersinger in October 1974 and married Mr Szlazko.
27 The deceased purchased No 156 Hillcrest Avenue Bankstown in May 1971. In October 1972 he married Hilda Enderby who died of cancer in October 1978. He remarried Helena Gadzur in December 1979, but she died of cancer in 1989.
28 The plaintiff became estranged from Mr Szlazko after he lost the family home and most possessions in a failed business venture of a bookshop. The plaintiff moved to Yagoona and she met up again with the deceased in the Bankstown shopping centre in March 1996. They immediately renewed their former friendship and the plaintiff says, saw each other and shared each other's home from that point. She says that she and the deceased lived in the deceased's home at 156 Hillcrest Avenue Bankstown as man and wife on the deceased's invitation from August 1997. In 2000 the deceased was diagnosed with cancer, the plaintiff nursed him. In November 2000 the deceased gave the plaintiff a power of attorney and on 28 November he made the will to which I have already referred.
29 Although the defendant challenges the plaintiff to show by proper evidence that she was a de facto wife, even allowing for the fact that the plaintiff's evidence is in narrative form and were it not for the objection of the defendant to it being withdrawn might not have been admitted, what material there is before me shows fairly clearly that the plaintiff was a de facto spouse. It is not the first time that the Court has come across a fact situation where childhood sweethearts have been forced apart by circumstances and later in life found each other again. Indeed, the deceased's sisters even wrote to her as "Antoni" though they may not have known her true situation. It is true that some of the bank statements were addressed to her at 8A Anderson Road Northmead even in 2000. However, the bulk of the material tends to bear out the plaintiff's claim. Most significantly, the plaintiff continually claims to be a de facto wife and very little, if any, of the cross examination was directed at her to challenge this claim. It is, of course, the case that the defendant has no personal knowledge one way or the other, but the plaintiff was tested on other matters, yet not on this.
30 Accordingly, in my view, on the balance of probabilities the plaintiff has made out her claim that she is an eligible person to make an application under the Act as a de facto widow.
31 The next matter to consider is whether proper provision was made for her by the testator's will.
32 Mr Dupree kept reminding me of the solemnity and significance and almost sanctity of a testator making his will having considered the claims upon him. One of course does take those matters into account but there would be no need for the Act at all if one stopped there.
33 Judges over the last twenty years particularly, have made it fairly plain that a provision for a widow such as that made in the instant case is entirely inappropriate for modern conditions. Indeed it is surprising to see a solicitor drawn will containing such provisions though it may well be that the client insisted upon them.
34 In Moore v Moore C/A, 16 May 1984, Hutley JA, at p 2, made it clear that a mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the 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 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. Kirby P, Cripps JA agreeing, in Golosky v Golosky 5 October 1993 repeated those words with approval. In Court v Hunt 19 September 1987, I said:
"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."