Thirkell v Cox

SOLICITORS : Patey & Murphy for plaintiff McDonald Johnson for defendant

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1963/2008 Beverley Margaret Thirkell v Paul Cox (Estate of Laura Octavia Atkins) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 ('the Act') in respect of the estate of the late Laura Octavia Atkins who died on 30 December 2006. The deceased was survived by her two sons, one of whom is the defendant in the proceedings. The evidence does not indicate whether the deceased's former husband is still alive. He was last seen after his separation from the deceased in 1958 when he went to live in Melbourne. I am satisfied that it is impractical to serve him with notice of these proceedings. 2 The plaintiff is a stepdaughter of the deceased. The deceased married the plaintiff's father late in life. The last will of the deceased 3 The deceased made her will on 10 July 2003. She appointed her son, Paul Ian Cox, the defendant, executor of her estate. In her will she set up a fund of $50,000 to provide for her disabled son, Norman Graham Cox. The residue of her estate was left to the defendant, Paul Cox, or if he predeceased her, his share was to go to her son, Norman Graham Cox. In default of Norman Graham Cox surviving the defendant, the estate would pass to the plaintiff Beverley Margaret Thirkell. Presently the defendant is entitled to the residue of his mother's estate. Assets in the estate 4 The estate consists of the deceased's property at Teralba Road, Broadmeadow valued at $280,000, furniture and a bank account of some $18,152. The defendant has added $32,000 of his own money to this amount and he has set up the trust fund for his brother pursuant to the will. 5 The defendant's costs are estimated at $32,725 and the plaintiff's costs are estimated at $48,400 on the basis that the matter was a one-day hearing. Unfortunately because of difficulty obtaining a witness the matter was adjourned for a further hearing. Family history 6 The plaintiff was born in May 1940. Her father was Stanser Roy Atkins, and her mother, Clarice May Atkins. She was one of four children. 7 The deceased married Norman Cox on 17 January 1942. He was a merchant seaman who spent about one week out of six at home while the rest of the time he would be at sea. 8 In 1952 the plaintiff's parents separated and her father Stanser was granted custody of the plaintiff and two of her three siblings. 9 In 1952 after the separation, the plaintiff, her brother Brian Atkins, her sister Faye Atkins and their father, Stanser, moved into the deceased's residence at Fullerton Street, Stockton. 10 In order to accommodate the people at Fullerton Street, Stanser Atkins built a room at the back of the house. Shortly after moving to the house Faye Atkins left to live with her mother while Brian Atkins moved in with his grandmother. The plaintiff and Stanser Atkins stayed on at the Fullerton Street home. 11 In December 1954 the plaintiff's parents were divorced. In 1954 or some time thereafter the plaintiff had fainting spells and she received treatment from a doctor that required her head to be shaved so she moved to live with her uncle and aunt at Mason Dieu near Singleton while her hair grew back. She remained with her aunt and uncle for about 9 months. She did not attend school in that year. 12 In January 1957 the deceased, her husband and Stanser Atkins moved to Hannell Street, Wickham. Later in 1957 they all moved to Sunderland Street, Mayfield when that was purchased on 23 August 1957. 13 The plaintiff says that she lived with the deceased when they lived at Hannell Street, Wickham and Sunderland Street, Mayfield. However her evidence on this aspect is a matter of contention in the proceedings. 14 In 1959 the plaintiff married Henry John Thirkell and she says she then moved out of the Mayfield property. 15 The deceased divorced Norman Cox on 11 May 1961. In the decree nisi Dovey J noted that: "The two children of the marriage reside with the Petitioner. Since the Respondent deserted the Petitioner on the 10 th October 1957 he has regularly supported the Petitioner and the children of the marriage."

Consistent with this state of affairs she had had the house at Mayfield transferred into her sole name on 25 February 1959. 16 On 16 September 1961, four days after the decree nisi became absolute, the deceased married Stanser Atkins the plaintiff's father. 17 In 1966 the plaintiff's mother died. In 1980 the plaintiff divorced her husband Henry Thirkell. Her ex-husband transferred the title of their property in Atkinson Street, Birmingham Gardens to the plaintiff in 1981. 18 In 1987 the plaintiff had a short relationship with Colon Phee. 19 In January 2003, Stanser Atkins died. The plaintiff would assist in taking the deceased to medical appointments before her father died. After her father's death she continued her frequent contact with the deceased, which still included taking her to medical appointments. As the deceased's health deteriorated the plaintiff prepared meals for the deceased's son, Graham Cox, who needed his evening meal prepared due to his disability. In 2006 Graham was placed in a community hostel when the deceased was unable to care for him. Eligibility 20 The plaintiff claims to be an eligible person as she alleged she was a member of the household of the deceased and that she was partly dependent on her. 21 The relevant period in which the plaintiff says she was part of the household was the time she says she lived with the deceased before she married Henry Thirkell in 1959. There is no doubt that she lived in the same house as the deceased for the period from 1952 when she and her father, Stanser, lived at Stockton with the deceased. 22 Whether the plaintiff was part of the household at Stockton may also depend upon the way the plaintiff was treated in the home. I refer later to the fact that there is some evidence that Stanser paid board to the deceased. This raises the question of whether, as a boarder, he and his children were not part of the deceased's household. 23 The defendant points to the decision of Needham J in Maloney v Goodwin (Supreme Court of New South Wales, 1 August 1989, Needham J, unreported) as implicitly stating that a mere boarder would not be "of the household." His Honour's comments were summarised by Young J in Nagatomi v Hudson (Supreme Court of New South Wales, 18 September 1997, Young J, unreported): "There have been judicial observations on the meaning of the word "household" over the last ten years. In Moloney v Goodwin Needham J - 1 August 1989, unreported, the case involved a man and woman who lived in the same house as companions though had no sexual relationship. The question was whether the deceased was a member of the household or a boarder. Needham, J said, "It was said that a family type unit is a necessary ingredient in the concept of a household. I think this is to some degree a borderline case, and I think the question of whether a household exists is perhaps a question of degree ... However, ... once the plaintiff commenced to look after the deceased in the manner in which he did, it could hardly be said that he was not a member of her household. He acted in supporting her at that time as a husband or brother, or son perhaps, would have done, and I think the care which he contributed to her well being certainly constituted him a member of her household." 24 Given that at least meals were provided by the deceased, I think it is appropriate to conclude that while the plaintiff was at Stockton she was part of the deceased's household. 25 There was debate as to whether she lived in the houses at Wickham and Mayfield from 1957 until she married in 1959. 26 The plaintiff and the defendant gave different accounts in their affidavit evidence. The plaintiff, who was born in May 1940, says she lived at Stockton, Wickham and Mayfield. She concedes that while she was living at Stockton she attended Wickham Girls High where she began having fainting spells. She says she then went to Maison Dieu for twelve months while she recuperated. She says she then returned from Maison Dieu to Wickham and then to Mayfield. 27 The deceased's son, Paul Cox, who was born in September 1947, gave evidence that the plaintiff did not come to reside at Wickham or Mayfield. There is no doubt that for the relevant period he lived at the homes at Wickham and Mayfield. 28 The plaintiff's brother, Brian Atkins, gave clear affidavit evidence that the plaintiff left Stockton to go to Maison Dieu and that after going to Maison Dieu, the plaintiff returned to live with her fiancée, Henry Thirkell, in a flat at Lambton. He said that he never saw the plaintiff or her possessions at Wickham which he described as a "dog box" and he visited Mayfield every two weeks where he saw no evidence of her possessions. He said the plaintiff was not living at that house. He was a year older than the plaintiff. It was demonstrated in cross-examination that his observations of Wickham were only in the daytime when the plaintiff may have been at school or at work. The title searches show that Stockton was sold on 17 January 1957 and Mayfield purchased on 23 August 1957. Therefore the family's occupation of Wickham would only have been seven months. This is less than the nine months the plaintiff spent at Maison Dieu. However, the precise time when the plaintiff left Stockton is not made clear in the evidence. 29 It became clear from cross-examination of the plaintiff that she had difficulty in putting dates to the events which happened many years ago. In respect of Wickham the plaintiff's memory was confused as to the hot water supply for the shower at the property. She thought it was a gas supply while Paul clearly recalled it was a wood chip heater which made "pop pop" sounds. The plaintiff does not remember it being a wood chip heater which is unusual. 30 Although this case does not depend solely on the plaintiff's evidence I bear in mind what was said by Bryson AJ in Zahra v Francica [2009] NSWSC 1206 for the need to carefully scrutinise the evidence where a plaintiff alleges facts that depend for proof very largely on the plaintiff's own evidence: "[1] In these proceedings the plaintiff makes claims against the deceased's estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

'… in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.'

[2] A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson , see particularly paras [26]-[28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA's para [28] observations in the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities." 31 I am not satisfied that the plaintiff lived at Wickham and it is more likely that she is reconstructing past events. 32 So far as Mayfield is concerned the plaintiff claims she finished the intermediate certificate after her year away from school at Maison Dieu. It is hard to imagine that she would have done the intermediate certificate as it would have been in her first year at Mayfield in 1958 when she would have been 18 years of age. 33 The plaintiff herself put the end of her schooling in late 1955 or 1956. 34 The plaintiff's brother, Paul Atkins, said that the plaintiff was living with her fiancée. His evidence has a ring of truth about it particularly as he was a year older than the plaintiff and he has no interest in the proceedings. 35 On the evidence I am not satisfied in respect of Wickham and Mayfield that the plaintiff was in fact living at the house. It is to be noted that she gave her address in her marriage certificate as Sunderland Street, Mayfield but there could be many explanations for this one of which could be the natural modesty at those times. 36 The next important question is whether or not she was dependent upon the deceased in respect of the provision of accommodation at Stockton. In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. Samuels J at page 490 said the following: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

37 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

38 This passage emphasises the factual nature of dependency be it financial or otherwise.

39 In Benney v Jones (1991) 23 NSWLR 559, the Court of Appeal returned to the issue in a case where the only dependency was emotional, resulting from a homosexual relationship between a party and the deceased. The Court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 40 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say: "I would respectfully disagree with the Master in both respects. The word 'dependent' is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

41 In McKenzie v Baddeley (Court of Appeal, 3 December 1991, unreported) Meagher JJA, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 42 In Williams v Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. In the present case the plaintiff was a child aged 12 years at the relevant time. With young children dependency becomes complex, as is illustrated in the cases of grandchildren.

43 In respect of grandchildren and stepchildren, a question often arises as to whether they are dependent upon the deceased or their parent who is also staying with the deceased. The matter has been considered in several cases. For example, in Vanvalen v Neaves; Gilroy v Neaves [2005] NSWSC 593, Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said: "The following is a convenient summary of the principles which I understand to be applicable to determination whether a grandchild is an eligible person: 25. The authorities make it clear that a grandchild is not normally regarded as to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator has come to assume, for some significant time in a grandchild's life, a position more attuned to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see eg Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer (1999) NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46. 26. The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799 ; MacEwan Shaw v Shaw (above). 27. Further, the fact that the testator occasionally or even frequently made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of section 6 (1) (d). To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assumed a continuing and substantial responsibility for the grandchild's support and welfare: se eg Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (above); Pearson v Jones (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223." 44 The quotation of Palmer J perhaps reflects the submissions that were made to him, which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. He went on to say in respect of that period: "[42] I am unable to accept that the period of three months in 1976 when Ellen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of section 6 (1) (d) of the Act. My reasons are as follows: [43] First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased daughter, rather than as direct support and maintenance of Julia." 45 The plaintiff's evidence is that she was wholly or partially dependent upon the deceased, becoming part of the deceased's family in 1952 from the age of 12. The deceased provided her with shelter, food, clothing, school uniforms, birthday and Christmas presents and the plaintiff participated in family activities such as camping, picnics, Christmas and birthday celebrations. On a daily basis the deceased packed her school lunch and cooked her meals. The deceased referred to the plaintiff as her "daughter" and the plaintiff called the deceased "mum." Paul Cox, the defendant, denied this but having regard to his age and the evidence of Brian Atkins, the plaintiff's brother, I accept that this reference occurred. 46 The defendant and the plaintiff's brother, Brian Atkins, contest the plaintiff's evidence, but have equally vague memories of the sleeping and living arrangements at the Stockton property. The defendant recalls going with the deceased to visit the plaintiff when she was at Maison Dieu and under cross examination by Mr Marshall, Brian Atkins remembered the following situation: "Q. When you moved in with Laura, sorry to go back in time, it is a bit confusing, but when you moved in with Laura at Stockton, Beverley moved in about the same time as you? A. We all moved in together.

Q. And Beverley started calling Laura mum, isn't that right? A. Well, we all did because our other mother was separated.

Q. Did you always refer to Laura as mum? A. Yes.

Q. And you didn't hear Beverley call Laura anything other than mum, isn't that right? A. Not that I recall.

Q. She didn't call her Mrs Cox or anything like that? A. No, nothing like that.

Q. When you were living at Stockton, Laura used to make your school lunches, didn't she? A. Yes.

Q. And she would make sure you had a school uniform each year? A. I can't remember that.

Q. You had a school uniform at your school, didn't you? A. No, we were too poor in those days. Didn't even wear shoes and socks at some stages of the game.

Q. You used to see that Beverley had a school uniform, didn't you? A. I have a picture of her at home with a green and white checked frock, but that is getting on a bit in years, isn't it?" 47 The question of whether the deceased provided the gifts and benefits on the basis that she had assumed a continuing and substantial responsibility for the plaintiff's support and welfare will in part depend upon the relationship between Stanser Atkins and the deceased. It seems that Stanser paid money to the deceased and according to Paul Cox his mother had mentioned when they lived at Mayfield that the payment was for board. When the relationship between Stanser Atkins and the deceased started this would not have been unusual given that Stanser and his children were going to live with the deceased in her house after his recent separation. He was also going to build an extra room to accommodate his children. At that stage plainly the deceased and her husband were still living together. We know from the comments of Dovey J that the alleged desertion was in October 1957, which is several months after Mayfield was purchased. This accords with other evidence such as that given by Paul Cox when he describes his father returning to Mayfield to ask the deceased for a divorce. This surprised Paul, as he had no idea there was going to be a divorce "until the sheila from the west turned up with the babies". Apparently his father moved to live with her somewhere in Melbourne. Also Mayfield was bought in the name of the deceased and her husband. 48 Although it seems clear that the relationship between the deceased and her husband had ended in October 1957 when the deceased had just moved to Mayfield the marriage breakdown may have occurred during the period at Wickham or earlier. Brian was questioned on this aspect, albeit in the context of where people slept. He said: Q. When you lived with Laura at Stockton, you had a bed in a room out the back, isn't that right? A. Yes, in the sunroom.

Q. Was it a room that your father built on to the place? A. Yes it was.

Q. And you and Beverley and Fay lived there in that room, didn't you? A. Yes.

Q. But your father didn't live in there? A. Sometimes.

Q. But not all the time? A. Not all the time.

Q. Did he only live in there when Norman came back? A. Yes. 49 Later in his cross-examination:

Q. And you knew there was a place in Mayfield that Laura kept? A. Yes, Sunderland Street.

Q. And you say you visited the house at Sunderland Street? A. Yes.

Q. How many bedrooms where in Sunderland Street, do you remember at all? A. It is in my affidavit.

Q. Well, do you remember now, just looking at me? A. It would have been three bedrooms.

Q. And did Graham and Paul share a bedroom or have separate bedrooms? A. It was one room each.

Q. Was Stan living there? A. Yes.

Q. And where did he stay? A. In the main room.

Q. So Norman had gone by then, is that right? A. No, Norman had bought the house but he used to be on the seas.

Q. So the relationship by that time was your father Stan was sharing a bedroom with Laura, is that right? A. Yes.

Q. Was that the same situation at Wickham? A. Couldn't say.

Q. You just don't know? A. I would say I couldn't say, no.

Q. Would it surprise you if it was? A. Possibly.

Q. You just don't know? A. No, because it was never in my time.

Q. And also because you spent most of your time at Stockton, didn't you? A. I did. 50 This evidence suggests that some attachment between the deceased and Stanser became evident at the time at Stockton. It is to be remembered that Brian did not live at Wickham hence his reluctance to comment on that situation. The recollections of life at Stockton by the defendant and the plaintiff are unreliable given their ages for the purpose of determining when such a strong romantic attachment may have commenced between the deceased and Stanser that the situation moved from the position of merely providing Stanser and his children with accommodation to that of the deceased being a person in loco parentis in respect of the plaintiff. 51 This was not a situation where a child has returned home to its parent bringing a grandchild with her when plainly a grandchild is still dependent upon its mother for daily needs and accommodation. We have here a middle-aged man recently separated and needing to provide a home for his young teenage family. He is given the opportunity to build a bedroom on the back of the deceased house and presumably he and his children share the rest of the house including the kitchen. It could also be assumed that this was at a time when what might now be called old-fashioned views of the roles of men and women in the house prevailed. As I have indicated I accept the evidence that the deceased cooked for the whole family and that she provided lunches for the plaintiff as well as her own children. 52 In the passage, which I have quoted above from Petrohilos Hope AJA, considers the situation of a child living with a stepmother and being looked after by her. He talks of the practical nature of dependency, which he regards as important. This is quite a different situation to that Palmer J was dealing with in Vanvalen. There it was a daughter who had returned home. Although the plaintiff was not a stepdaughter at this stage the likelihood of some closeness between the deceased and Stanser and the practicalities of the home for those 2 years means that the deceased filled a de facto mother role in respect of the plaintiff. Bearing these matters in mind I am satisfied that the plaintiff was dependent upon the deceased at Stockton. This means she is an eligible person. 53 It is necessary under s 9 (1) of the Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "… the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 54 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

55 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter (Court of appeal, 13 November 1998, unreported) which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

56 In the circumstances where I have found that the plaintiff was partly dependent upon the deceased I am satisfied that the appropriate factors warranting would be available. 57 The High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant inadequate for [his or her] proper maintenance, education and advancement in life''? The difference between adequate'' and proper'' and the interrelationship which exists between adequate provision'' and ``proper maintenance'' etc were explained in Bosch v Perpetual Trustee Co Ltd [1938] AC at 476. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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 (1951) 82 CLR 645, 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." 58 I turn to consider the plaintiff's situation in life. The plaintiff is 70 years of age. She lives at Tea Gardens in a house worth about $350,000 which is subject to a mortgage with the Commonwealth Bank of $56,000. She has a very old car that she would like to replace, clothes, furniture and personal effects of no great value. Her income is from a Centrelink pension of $335.50 a week and part time cleaning work of $90 a week which totals $425.50 a week. She needs to pay for medication for osteoporosis and osteoarthritis. 59 It is plain that the relationship between the plaintiff and the deceased continued until late in the life of the deceased and that plaintiff helped the deceased over many years. 60 It is be necessary to consider others who have a claim on the bounty of the deceased. It this case the only relevant person is the deceased's son, Paul Cox. Paul is 63 years of age and he has retired from his main occupation and now owns a vehicle wrecking business which he bought for $345,000. His partner in the business has left and the business is not profitable. The land on which the business is operated has a mortgage of $455,000 which was borrowed for its purchase. As at 16 April 2009 Paul had cash in the bank of $16,600 which he lives on given that the business was making losses every month. 61 During the lifetime of the deceased Paul supported the deceased. He paid thousands of dollars for his mother's council rates. In 2006 he paid $6,500 to have the house painted and he paid $3,000 to install air conditioning. Discussion 62 It will be necessary to consider how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff is asking for $22,000 to replace her car and $14,500 for repairs to her house. There is no doubt the need for her car to be replaced and her claim is quite modest. 63 In this regard I would have thought she has been left without adequate and proper provision for her advancement in life. The question of whether the property should be designated notional estate is a difficult matter because of the financial circumstances of the defendant. Bearing in mind the factors in s 27 of the Act, I think it is appropriate to allow her some modest legacy to replace her car by an award of a legacy of $20,000. 64 The orders that I make are as follows:

1. The plaintiff to receive a legacy of $20,000. 2. Subject to submissions I order the plaintiff costs on the ordinary basis and the defendants on an indemnity basis to be paid out of the estate of the deceased.

3. Interest to run at the rate provided in the Probate and administration act if the legacy is not paid within 3 months and on and from that date.

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