Turner v Wall [2008] NSWSC 346 | Case summary

(d) gave the residuary estate to the Defendants and Mrs Campbell as tenants in common in equal shares. 10 The first item of substantive relief sought by the Plaintiff in the present proceedings is a declaration that upon their true construction, and in the events which have happened, the foregoing words, "any monies [sic] held by me in any financial institution at the date of my death" in clause 3 (b) of the will of the Deceased include the moneys held in the Citicorp Personal Super and Roll-over Plan Options 830064445 and 830064674. 11 It will be appreciated that, until it is known what benefits the Plaintiff receives under the provision of the will, the Court cannot proceed to a determination of her claim under the Family Provision Act, since it will not be known whether, by reason of the provision made for her under the terms of the will, the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life. Accordingly, it is appropriate that I should first proceed to a consideration of the question posed in prayer 1 of the amended summons, concerning the true construction of the foregoing passage in clause 3 (b) of the will. 12 The moneys held in the foregoing Citicorp Options at the date of the Deceased's death had a total value of $413,439.53, and one fourth of those moneys comprise the sum of $103,359.88. 13 The assets which are the subject of the present claim in respect to the construction of the relevant provision of the will are what might compendiously be described as superannuation entitlements of the Deceased. Evidence concerning the nature of the superannuation fund, the identity and the role of the trustee, and the entitlement of the Deceased to those assets was contained in the various documents annexed to the affidavit of Daniel Francis Butt, solicitor for the Plaintiff, sworn 23 August 2007. 14 I have had the benefit of receiving written outlines of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 15 In approaching the construction of a provision in a will (or, in any written instrument) the Deceased's intention must be collected from the will as a whole (Perrin v Morgan [1943] AC 399 at 406; Firriolo v Firriolo [2000] NSWSC 1039 per Bergin J at [18]). In Firriolo Bergin J, in considering Perrin, emphasised the importance of the principle that, prima facie, words used in a will are given their "strict, plain, common meaning", unless, upon an examination of the provisions of the entire will, the testator used the words in a different sense from their ordinary meaning or a secondary meaning makes sense when the ordinary meaning does not. 16 The Courts are entitled to be credited with a knowledge of the ordinary use of language, and the meaning of words is to be determined on the basis of judicial notice, dictionaries and context (Perrin at 418; Johansen v Art Gallery of New South Wales Trust [2006] NSWSC 577 at paragraph [22] (Hamilton J)). Previous decided cases regarding the construction of particular words are likely to be of little assistance, on account of differences in context (Walford v Walford [1912] AC 658 at 664; Perrin at 408; Hatzantonis v Lawrence [2003] NSWSC 914 at paragraph [7] - [8](Bryson J)). 17 In Hatzantonis v Lawrence Bryson J emphasised the importance of ascertaining the basic scheme which the testator had conceived for dealing with his estate, then of construing the will to give effect to that scheme thus revealed. 18 In the instant case the scheme of the Deceased's will is straightforward. First, the Deceased dealt with his residence, by giving a life estate to the Plaintiff (upon certain conditions), with the interest in remainder being given to the Plaintiff's son. 19 The Deceased then disposed of "monies held by me in any financial institution at the date of my death" in the manner set forth in clause 3 (b) of his will (being equally among the Plaintiff and the Deceased's three sisters). 20 Finally, the Deceased disposed of the residue of his estate (giving it equally among his three sisters). 21 It is apparent that the Deceased turned his mind to a complete distribution of the entirety of his estate. His dispositions progress from the specific to the general; starting with his real property; moving to his cash assets; and culminating with a gift of his residuary estate. 22 The Deceased did not make any specific reference in his will to his superannuation entitlement. The question is whether that superannuation entitlement is encompassed by the provisions of clause 3 (b) or whether it forms part of the residuary estate. 23 The phrase "financial institution" does not appear to be a term of art; neither does it appear to have a special or settled legal meaning. In this regard, the Plaintiff relied upon the decision of the High Court of Australia in State Superannuation Board v Trade Practices Commission (1982) 150 CLR 282 (where the High Court was considering the phrase "financial corporation"). 24 The ordinary grammatical meaning of "financial institution" is, according to the Oxford English Dictionary, an institution or body "of, pertaining, or relating to finance or money matters", "the management of money, especially public money" or which "conduct[s] or engage[s] similarly in financial operations [or] manage[s] monetary affairs" 25 Similarly, the Macquarie Dictionary defines such an institution as being such an institution or body "commonly engaged in dealing with money and credit", "monetary receipts and expenditures" [or ] "money matters" or " the conduct or transaction of money matters generally, especially such as affect the public, as in the fields of banking and investment". 26 It was submitted on behalf of the Plaintiff that a financial institution is an institution or body coming within the foregoing dictionary definitions, or "which engages in financial activities" in the sense referred to in State Superannuation Board v Trade Practices Commission (at 305 per Mason, Murphy and Deane, JJ); or "engages in … financial transactions" (Fencott v Muller (1983) 152 CLR 570 at 601). 27 In the instant case the entity that held the deceased's entitlements, being the Citicorp Personal Super and Roll-over Plan Options, was Citicorp Investments Limited as trustee for the Citicorp Retirement Fund. 28 The Plaintiff relied upon the evidence concerning the business carried on by Citicorp Investments Limited, being the business as a "licensed securities dealer providing financial services", and the evidence concerning the nature of the relationship between that company and what was referred to in the evidence from Mr Butt as the Citigroup of companies. That evidence disclosed that Citigroup Inc. (incorporated in the United States of America) is a global financial services company whose business provides a broad range of financial services to over 200 million customer accounts in over 100 countries in the world, with an asset base of over US$1 trillion. 29 It was submitted, therefore, that Citicorp Investments Limited is clearly a "financial institution" in the ordinary, grammatical meaning of the term, and also in the context of the will of the Deceased. 30 The Plaintiff also submitted that the word "monies" [sic] does not have one natural or usual meaning, but several meanings (Perrin v Morgan; Lutheran Church of Australia SA District Inc v Farmers' Co-operative Executors and Trustees Limited (1970) 121 CLR 628 at 646 - 647, 632, 642; Palmer v Bank of New South Wales [1973] 2 NSWLR 244 at 252 per Hutley JA; Hatzantonis at [7] - [8]). 31 It was submitted on behalf of the Plaintiff that the ordinary, grammatical meaning of "monies" in the context of the will is "sums of money" or "property or possessions of any kind viewed as convertible into money or having value expressible in terms of money" (Oxford English Dictionary); or "pecuniary sums" or "property considered with reference to its pecuniary value" (Macquarie Dictionary). 32 It was submitted on behalf of the Plaintiff that the evidence concerning the Deceased's superannuation entitlements was that his funds were placed with a "capital guaranteed" superannuation fund, and that his benefits were expressible (and were, in fact, expressed) as "pecuniary sums" or "sums of money". 33 It was further submitted that, on any view, the Deceased's benefits were "property considered with reference to its pecuniary value" or "property or possessions of any kind viewed as convertible into money or having value expressible in terms of money".

34 On behalf of the Defendant, however, it was submitted that the expression "monies held by me" was clear and unambiguous, and that that phrase must be contrasted with the position where moneys were held by others (for example, by trustees of a superannuation fund). 35 It is abundantly clear from the material annexed to Mr Butt's affidavit of 12 October 2006 that the superannuation fund trustee had, in that capacity, control of the Deceased's superannuation funds and entitlements at all relevant times, both before and after the death of the Deceased. 36 Citicorp Investments Limited, as such trustee, is far removed from a financial institution like a bank or building society or credit union, where a customer or a member deposits his or her money and has an immediate right then to withdraw it. I am in agreement with the submission on behalf of the Defendants that it is financial institutions which held the Deceased's money on deposit which are referred to by the words which the Court is here required to construe. 37 It is difficult in those circumstances, to apply the phrase "monies held by me" to funds which were held not by the Deceased himself, but by another entity which had a discretion as to whether or not it would pay those funds to the Deceased, or, after his death, to his estate. Similarly, when considering whether the Deceased's superannuation entitlement can be encompassed within the phrase "monies held by me in any financial institution", the argument of the Plaintiff appears to look first to the financial activities and nature of Citicorp Investments Limited, being the holder of the funds, and then to argue that, because that entity is, or may be, a financial institution, any funds which it might hold ultimately for the benefit of the Deceased are encompassed within the concept of monies held by the Deceased with that financial institution. 38 Taken as a whole the ordinary and grammatical meaning of the phrase "monies held by me in any financial institution" clearly means moneys controlled by the Deceased himself which were held in an entity coming within the description of "financial institution". The evidence does not persuade me that moneys which were held by a financial institution and under the discretionary control of that institution, albeit moneys which that financial institution was entitled to distribute to the Deceased, come within the description of "monies held by me in any financial institution" contained in the will. 39 I am fortified in the foregoing view that the superannuation funds are not encompassed by the foregoing phrase, by the fact that the Deceased held moneys in bank accounts which undoubtedly did come within that phrase and that those assets fell logically within the clear scheme of the testamentary dispositions of the Deceased as outlined in his will - being first the disposition of his real property; then the disposition of moneys held by the Deceased himself in financial institutions such as banks; and finally the disposition of the residue of his estate. 40 I am satisfied that upon a true construction of the terms of clause 3 (b) of the will, the superannuation entitlements of the Deceased do not fall within the phrase "any monies held by me in any financial institution at the date of my death", but comprise part of the residuary estate of the Deceased. 41 It follows, therefore that the Plaintiff does not receive any interest in the superannuation entitlements of the Deceased, and that the benefit which she receives pursuant to clause 3 (b) of the will is one fourth of the moneys amounting to about $50,500 described in the inventory of property as "money in current bank accounts". That is, the Plaintiff will under the provisions of clause 3 (b) of the will be entitled to receive somewhat more than $12,000. 42 It is appropriate, therefore, that I now proceed to a consideration of the claim by the Plaintiff for provision for her maintenance and advancement in life out of the estate or/notional estate of the Deceased, pursuant to section 7 of the Family Provision Act. 43 Apart from the foregoing superannuation entitlements totalling $413,439, the inventory of property discloses the following assets in the estate of the Deceased, and the respective values attributed thereto, Real estate 24 Shannon's Lane, Gilletts Ridge $285,000 "Bills", Lower Coldstream Road, Ulmarra $100,000 Money in current accounts, totalling $50,208 Debts totalling $46,271 Motor vehicles (being 4WD utility, Millard caravan, and runabout boat), totalling $8,950 Farm plant and equipment $2,500 Taxation credits $1,040 44 The total value of the assets of the Deceased disclosed in the inventory of property is $907,434. 45 The foregoing debts, totalling $46,271, disclosed in the inventory of property included a debt of $9,000 owing to the estate by Patrick Smith. In her affidavit of 28 August 2007 the First Defendant stated that she and her co-executor had decided not to pursue the amount of that debt, because there was no documentary evidence of the agreement between the Deceased and Mr Smith as to the terms of the advance by the Deceased of that sum to Mr Smith. The only documents were three cheque butts of the Deceased, evidencing three payments totalling $9,000. After seeking and obtaining advice from the estate solicitors as to the likelihood of success in recovering that money, the executors decided not to pursue the debt, as they did not wish to run the risk of expending costs of themselves, and possibly of Mr Smith, in Court proceedings. The other two debts owing to the estate, totalling $37,271, have been repaid. 46 The 1996 Nissan Navara utility motor vehicle, valued at $8,500, was given to the First Defendant as an advance on her legacy in an agreed amount of $11,500. 47 At the time of the hearing of the proceedings there was standing to the credit of the estate in accounts with the Bendigo Bank at South Grafton the sum of $471,382; a further sum of $5,138 held in the estate trust account with the estate solicitors. The foregoing sums, in a total amount of about $476,500, constitute the only assets of the estate which remain undistributed, apart from the Deceased's property at Gilletts Ridge. All the estate liabilities have now been paid, other than income tax (in an amount which is expected to be about $15,000) and the outstanding costs of the present proceedings. 48 In calculating the value of the estate available for distribution, the costs of the present proceedings must be taken into consideration, since the Plaintiff, if successful, will normally be entitled to an order that her costs be paid out of the estate of the Deceased, whilst the Defendants, irrespective of the outcome of the proceedings, will normally be entitled to have their costs out of the estate. It was estimated on behalf of the Plaintiff that her costs will total almost $79,000, whilst it was estimated on behalf of the Defendants that their costs will total about $98,000. It should be noted that part of the costs of the Defendants (in amounts totalling $40,357) have already been paid, and that the Defendants have paid from the estate an amount of about $3,700 for independent legal representation of the remainderman, Blaize Tilley (an infant), at a mediation held in Sydney before a private mediator in May 2007. 49 It is prudent, therefore, to proceed upon the basis that the value of the distributable estate (apart from the Gilletts Ridge property) will be in the order of $320,000. 50 It should also here be noted that the Plaintiff has already received a cash distribution of $12,190, that sum representing one fourth share of the moneys held in bank accounts, pursuant to clause 3(b) of the will ($12,786), less reimbursement due to the estate for water usage, rates, etc ($596). 51 It should also here be recorded that a claim under the Family Provision Act was made against the estate of the Deceased by Craig John Knight, the son of the First Defendant. That claim was settled by consent on 27 August 2007, by the payment of a legacy of $40,000 to that claimant. 52 When the Deceased's father died in 1967, he left his entire estate to be divided between his two sons, being the Deceased and Kevin Blanch, conditional upon those sons paying to each of their three sisters the sum of $1000. When the Deceased's mother died in 1995, she left the entirety of the estate to the Deceased. The Deceased, who had never married and was childless, had lived with his parents (and, after the death of his father, with his mother) on the family property for the entirety of his life. It would appear that for the last nine years of his life (from the time when his mother died) the Deceased was lonely, depressed and in ill-health and that at times he drank to excess and threatened suicide.. 53 The Plaintiff, who was born in New Zealand on 1 April 1971, is presently aged 37. She came to Australia in 1988. The Plaintiff has a son, Blaize Shikonnie Tilley, born on 12 October 1990 to a relationship of the Plaintiff and Dion Tilley. After that relationship terminated in 1991 the Plaintiff and Blaize removed to the Central Coast of New South Wales, where the Plaintiff commenced a relationship with Brian Turner. Of that relationship were born two sons, Jeremy Barry (born on 16 January 1994), who is presently aged 14, and Alex James (born on 17 November 1995), who is presently aged 12. The Plaintiff and Mr Turner married in 1994. However, that marriage broke down in 1997, and the Plaintiff and her three sons, removed into rented Department of Housing accommodation in South Grafton. 54 The Plaintiff became acquainted with the Deceased in 1999, and subsequently a close friendship developed between the Plaintiff and her three sons on the one side and the Deceased on the other. At the Deceased's request the Plaintiff's sons addressed him as "Uncle Graeme". 55 For some months in 2000, the Deceased was residing at Ballina with her then partner, Patrick Smith. The Plaintiff's two younger children were throughout that period residing with their father, Brian Turner, who was then living in Adelaide. 56 In about October 2001 the Deceased invited the Plaintiff (accompanied by Blaize) to move into residence at his Gilletts Ridge property, in the capacity of his live-in carer. The Plaintiff accepted that invitation. Shortly thereafter, in late 2001 or early 2002, the Plaintiff's other two children, Jeremy and Alex returned to the custody of the Plaintiff, and also commenced to reside at Gilletts Ridge. 57 Throughout the period from the time when the Plaintiff moved into residence upon the Gilletts Ridge property until the Deceased's death some three years later, the Plaintiff acted as the full-time carer of the Deceased. His health significantly deteriorated in 2002, and from then until his death on 4 September 2004, the Deceased was in poor physical health and was emotionally depressed. Apparently at times he would drink alcohol to excess, and on occasion he would threaten suicide. In that period he was admitted to the Grafton Base Hospital or the Lismore Base Hospital on fifteen seperate occasions. In April 2004, after an admission to the Grafton Base Hospital, he was discharged to the Grafton Aged Care Home. He did not thereafter return to his own residence at Gilletts Ridge. 58 The Plaintiff gave detailed evidence concerning the nature of her relationship with the Deceased. She said that that relationship was a close and affectionate one, but that at no time was she in a de facto relationship with the Deceased, and that at no time did any sexual relationship obtain between them. 59 Considerable evidence was given by each of the three sisters of the Deceased concerning their observations of the nature of the relationship of the Deceased and the Plaintiff and the manner in which they perceived the Plaintiff to carry out her duties as the full-time carer of the Deceased. Much of that evidence was the subject of dispute between those beneficiaries and the Plaintiff. Similarly, those three sisters of the Deceased disputed the Plaintiff's evidence that her relationship with their brother was as close or as loving a relationship as the Plaintiff would have the Court accept. 60 Considerable evidence was given by the Deceased's sisters concerning their observations regarding the presence (asserted by them to be the residence) of Patrick Smith at the Deceased's Gilletts Ridge property. Much of that evidence was disputed by the Plaintiff. She denied that she was still in a de facto relationship with Mr Smith. 61 In about August 2002 the Deceased acquired a caravan which he placed in the yard of his property. From that time until early January 2004 (upon his return home after spending seven weeks in hospital) the Deceased treated that caravan as his bedroom, sleeping there, and spending parts of each day there. The circumstances which gave rise to the Deceased relinquishing his bedchamber in his own home and removing himself into a caravan parked in the grounds of his residence were the subject of dispute between the Plaintiff on the one hand and the beneficiaries on the other. 62 There was also dispute between the parties concerning the standards maintained by the Plaintiff in carrying out her duties as the full-time live-in carer for the Deceased and in carrying out such household tasks as cleaning, washing, ironing and cooking, as well as general maintenance of the residence, the surrounding garden and the yard. For a period of some months in 2001 Home Care regularly attended upon the residence of the Deceased at the instance of the First Defendant (who asserted that she, both before and after that period, performed for the Deceased such domestic tasks as cleaning the kitchen, washing up, washing and ironing clothes). 63 After the Deceased was admitted to the Grafton Aged Care Home in April 2004, the Plaintiff agreed with the Deceased that she should pay rent to him of $120 a week, in respect to the accommodation of herself and Patrick Smith upon the Gilletts Ridge property. However, according to the First Defendant (who made the appropriate arrangements with the Bendigo Bank, to enable such payments to be made directly into the Deceased's bank account), the Plaintiff made only two such payments of rent, being $80 on 30 July 2004 and $116 on 10 August 2004. Patrick Smith did not during the lifetime of the Deceased repay any of his indebtedness to the Deceased. 64 At the present time, aside from her benefits under the will of the Deceased (it being noted that in March 2005 she received a distribution from the estate of the Deceased in a net amount of $12,190), the Plaintiff's assets are minimal. Other than her personal effects, her only significant asset is a motor vehicle (which had been purchased for her by the Deceased in January 2002 for $8,150). Her income, from various Centrelink benefits, presently totals $1,479 a fortnight. She gave evidence of her outgoings and expenditure, in a total amount of $1,072 a fortnight. Presently the Plaintiff looks after her son Jeremy, now aged 13, and currently in South Grafton High School. Her eldest son Blaize (now aged 17), essentially for convenience of schooling, is currently residing in a nearby village with his girlfriend at the residence of that girlfriend's grandparents. An affidavit of Blaize was filed on behalf of the Defendants. The Plaintiff's youngest son Alex resides with his father in Orange. 65 Evidence was given by each of the Deceased's three sisters, being the three other major beneficiaries named in his will, concerning the financial and material circumstances of each of those beneficiaries. Each of those ladies is of mature years. One is a widow, the other two reside with their respective husbands. Each is in receipt of some form of social security benefits. It is a fair summary to say that, whilst none of those three ladies is destitute, none is in affluent circumstances. 66 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff for an order for provision under the Family Provision Act. 67 As I have already recorded I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 68 I have already referred to the many areas of factual dispute between the Plaintiff on the one hand and the sisters of the Deceased on the other hand. It is not necessary that I should make findings in respect to each and every matter in dispute. It is appropriate, however, that I should express my views concerning the reliability to be placed on the evidence of the Plaintiff where the only evidence on a significant matter in issue is the uncorroborated oral testimony of the Plaintiff on the one hand and of another witness (in most instances, the First Defendant) on the other hand. I regarded the Plaintiff as an unreliable witness in a number of instances. I would particularly refer to the incident concerning the return of the Deceased's utility motor vehicle (a matter in itself of little importance to the present proceedings). In her affidavit evidence, the First Defendant stated that the Plaintiff's conversation on that occasion was littered with profanities. At paragraph 88 of her affidavit of 9 August 2007, the Plaintiff denied that allegation. However, under cross-examination she admitted that her conversation on that occasion had indeed been littered with profanities, and that her denial in her affidavit had been false. (I gather that the witnesses in referring to profanities meant obscenities.) 69 In regard to the Plaintiff's credibility it should also be observed that no evidence was forthcoming from Mr Patrick Smith, a person who might have been expected to give evidence supporting the Plaintiff's account of many of the disputed events and occurrences, since he was asserted to have been present at or to have participated therein. 70 In general, where evidence upon a matter in dispute consisted only of the unsupported oral testimony of the Plaintiff on the one hand and of the First Defendant on the other hand, I preferred that of the First Defendant. 71 At the outset, the Plaintiff must establish that she is an eligible person within one of the categories of the definition of that phrase contained within section 6 (1) of the Act. Unless she can establish that she is an eligible person in relation to the Deceased, the Plaintiff will not have the standing to bring the present proceedings, and her claim must be dismissed. 72 It was submitted on behalf of the Plaintiff that she is an eligible person within paragraph (d) of the foregoing definition of that phrase, in that she had been a member of the same household as the Deceased and that she had been partly dependent upon the Deceased. The Defendants disputed the assertion that the Plaintiff was an eligible person. 73 I am satisfied that for the period from October 2001, when the Plaintiff and Blaize moved into the Defendant's residence at the Gilletts Ridge property, the Plaintiff was a member of the same household as the Deceased. 74 It was submitted on behalf of the Plaintiff that throughout the period whilst she was in residence at the Gilletts Ridge property she was partly dependent upon the Deceased, in that she was provided by him, free of charge, with accommodation for herself and her three children. It was, however, submitted on behalf of the Defendants that that accommodation was provided in return for certain housekeeping services. Nevertheless, it was the case of the very Defendants themselves that the Plaintiff either did not perform those services at all or, if she did, performed them in a very inefficient and inadequate fashion. 75 I am satisfied that throughout the period from the commencement of her occupation at the Gilletts Ridge property the Plaintiff was partly dependent upon the Deceased, at least for her accommodation. 76 It follows, therefore, that the Plaintiff is an eligible person within paragraph (d) of the foregoing definition. As such she has the standing to bring the present proceedings. 77 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 -210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for her proper maintenance. 78 The High Court said (at 209 - 210) that the determination of the first stage 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. 79 It should be appreciated that the Plaintiff must establish her claim upon its own merits. She cannot enhance her claim by, for example, establishing (if such be the case) that there was a lack of contact between the Deceased and his three sisters. As significant chosen objects of the testamentary beneficence of the Deceased (as his residuary beneficiaries), they do not need to prove anything. 80 It should not be overlooked that the Plaintiff has received a very substantial benefit under the will of the Deceased. She has been given an estate for life (or until she earlier remarry, and subject to the payment by her of specified outgoings and the keeping of the property in reasonable repair) in a rural property to which in the inventory of property was attributed an estimated value of $285,000 (although, according to the evidence of Stephen John Herbert, a certified practising valuer, retained on behalf of the Defendants, the present value of that property is $305,000, whilst according to the evidence of Allan Myles Gough, a registered valuer, the present value of the property is $450,000). Further, it should not be overlooked that the interest in remainder in that property was by the will of the Deceased given to the Plaintiff's son, Blaize Tilley. Although he is not currently residing with the Plaintiff on the property, he is (essentially for convenience of his schooling) living nearby, and retains frequent and regular contact with his mother. In addition the Plaintiff has, by the will of the Deceased, received a monetary benefit in excess of $12,000. 81 I have already referred to the considerable quantity of evidence given by the Plaintiff on the one hand and by the Deceased's three sisters on the other hand, concerning the asserted relationships between, respectively, the Deceased and the Plaintiff and the Deceased and each of his three sisters and the fact that the versions given by the Plaintiff and by Deceased's three sisters are largely inconsistent. In this regard, it is appropriate that I should set forth the following salutary admonition of Windeyer J, in the High Court of Australia, in Blore v Lang (1960) 104 CLR 124 at 137, The jurisdiction under the Testator's Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasized at the expense of evidence directed to the central issues in the case. 82 It should be emphasised that an order for provision is not made as a reward for services and good conduct on the part of an applicant. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant. 83 It will be appreciated that any additional provision which may be given to the Plaintiff will come out of residue and will of necessity result in a diminution in the benefits given by the Deceased under his will to his three sisters. 84 As I understood it, the Plaintiff, at least until the conclusion of the evidence, sought to receive from the estate of the Deceased, in addition to the benefits given to her by clause 3 (a) and (b) of the will (being the life estate and the monetary amount in excess of $12,000) a monetary legacy in a significant amount. The purpose of that monetary legacy was to enable her to effect repairs and renovations to the Gilletts Ridge property, where she wishes to continue to reside and which she wishes to operate as a small hobby farm. The Plaintiff provided quotations in respect to such repairs and renovations, in amounts totalling about $140,000. 85 The suggestion that she might prefer to reside in Grafton, where employment would more readily be available to her, was rejected out of hand by the Plaintiff. Similarly, she rejected the suggestion that, by arrangement with the executors, a substitutionary property should be acquired for her in or near Grafton. 86 However, it was ultimately submitted on behalf of the Plaintiff that (in the event, which has happened) that she be unsuccessful in her submission in respect to the construction of the benefit given to her under clause 3(b) of the will, the dispository provisions of the will in respect to the Gilletts Ridge property should be altered so that the fee simple in that property be transferred to the Plaintiff and her son Blaize Tilley as tenants in common (the Plaintiff receiving 95 per cent and Blaize receiving 5 percent therein, or the Plaintiff receiving 90 per cent and Blaize receiving 10 percent therein) and that the Plaintiff should also receive a legacy of $120,000. 87 It will be appreciated that the foregoing submission in respect to the fee simple of the Gilletts Ridge property would have the effect of depriving Blaize Tilley, an infant, of his interest in remainder in that property. Even if I were to be persuaded that the Plaintiff had established an entitlement to receive a greater benefit than was given to her under the will of the Deceased, I certainly would not grant to her any further provision which would have the effect of depriving an infant beneficiary (her own son) of his interest in remainder in this quite valuable rural property. Blaize Tilley will attain his majority on 12 October 2008. Thereafter it will be open to him to enter into any arrangement he chooses with this mother, the life tenant, concerning the Gilletts Ridge property. However, until he attains his majority, the Court has a duty to protect his interest under the will. I am not persuaded that any additional benefit to which the Plaintiff might ultimately establish an entitlement should have the effect of depriving Blaize Tilley of his interest in remainder in the Gilletts Ridge property. 88 Whilst recognising that the Plaintiff is not in particularly affluent circumstances, nevertheless, she received ample and generous provision from the Deceased both during his lifetime and under his will. That testamentary provision will ensure that she is secure in her accommodation for life (or until her remarriage), subject to the conditions of the will requiring the payment of outgoings and the maintenance of the property. Those conditions are no more onerous than one would expect of any householder, or any occupier of property. As I have already observed, it should not be overlooked that it is the Plaintiff's own infant son who has received the interest in remainder in the Gilletts Ridge property. In addition, the Plaintiff has received under the will a monetary benefit in excess of $12,0000. The Plaintiff received those benefits as a result of an acquaintance (later a friendship) with the Deceased that obtained for less than five years. Neither should it be overlooked that the Plaintiff made no direct contributions towards the assets of the Deceased. Those assets all came from the Deceased's own endeavours and from inheritances from his own family. 89 In the instant case, having regard to all the facts and circumstances, including the various matters referred to by the High Court in the foregoing passage from Singer v Berghouse, I am not satisfied that the Plaintiff has been left without adequate provision for her proper maintenance. 90 The foregoing conclusion is determinative of the Plaintiff's claim for an order for provision. 91 Further, however, it will be appreciated that, since she is an eligible person only within paragraph (d) of the foregoing definition, the Plaintiff must, pursuant to section 9 (1) of the Act, establish that there are factors which warrant the making of the application. 92 Such factors were described by McLelland J (as he then was in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being, factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. 93 It was submitted on behalf of the Plaintiff that she would be generally regarded as natural object of such testamentary recognition by the Deceased because, as the Deceased himself repeatedly acknowledged, she ultimately provided him with far more in the way of help and care than that of a live-in carer or housekeeper. Further, that she effectively did so for most of the last three years of his life in circumstances where the Deceased had no immediate family members to do so (such as a wife or children or, before 1995, a mother), and the family members he did have (namely his three older sisters and his brother, from whom he was estranged) either provided no such help and care, or (in the case of the first Defendant) provided only limited assistance. 94 There can be no doubt that the Deceased was very largely dependent upon the Plaintiff during the last three years of his life. It is not necessary for me to resolve the significant conflict between the evidence of the Plaintiff and that of the Deceased's three sisters, concerning the precise nature of the relationship between the Deceased and the Plaintiff. It would appear that, certainly at the outset, and before Mr Smith arrived at the premises and the Deceased withdrew into the caravan, the Deceased was appreciative of the company and companionship provided for him by the Plaintiff and her three children. 95 Nevertheless, I am not persuaded that the role and activities of the Plaintiff in relation to the Deceased were, during a period of no more than three years, such that she would be generally regarded as a natural object of testamentary recognition by the Deceased. The fact that she was so recognised by the Deceased himself (by a life estate in his residence and by a monetary gift in a not insignificant amount) reveals the extent of the Deceased's attitude toward the Plaintiff. However, those testamentary benefits given by the Deceased to the Plaintiff (as well as the very significant benefit given by him to the Plaintiff's eldest son) do not in my conclusion decide the objective test posed by McLelland J as to whether the Plaintiff would generally be regarded as a natural object of the testamentary recognition by the Deceased. I would answer that question in the negative. 96 I am not satisfied that the Plaintiff has established the existence of factors warranting the making of the present application, being any factors beyond those which establish the status of the Plaintiff as an eligible person in relation to the Deceased. Unless such factors can be established, the statute requires that the Court "shall refuse to proceed with the determination of the application and to make the order". 97 But even if (contrary to the conclusion which I have just expressed) I were to be satisfied that the nature of the relationship between the Plaintiff and the Deceased constituted such factors warranting the making of the application, I consider (as I have already recorded) that the significant benefits given to the Plaintiff by the will of the Deceased were such that the Plaintiff has not been left without adequate provision for her maintenance. 98 It follows, therefore, that the claim of the Plaintiff for provision from the estate of the Deceased will be dismissed. 99 Usually the dismissal of a claim for an order for provision carries with it an order that the unsuccessful applicant pay the costs of the executors. However, it will be appreciated that in the instant case the proceedings were not limited to a claim by the Plaintiff for an order for provision, but that that application for provision was dependent upon the relief sought by the Plaintiff in respect to the construction of the will of the Deceased, and the question whether the terms of clause 3(b) had the effect that the Plaintiff would share in the superannuation benefits of the Deceased. Usually, in proceedings for construction of a will, all the parties properly joined in the proceedings are entitled to have their costs out of the estate. 100 Accordingly, it is appropriate that the parties have an opportunity to make submissions in respect to the costs of the present proceedings. 101 I make the following orders 1. I declare that, upon their true construction, and in the events which have happened, the words "any monies held by me in any financial institution at the date of my death" in clause 3(b) of the will of the late Graeme Royce Blanch ("the Deceased") do not include the moneys held in Citicorp Personal Super and Roll-over Plan Options 830064445 and 830064674. 2. I order that the balance of the proceedings be dismissed. 3. I reserve to the parties liberty to apply in respect to costs. 4. The exhibits may be returned. **********

Turner v Wall

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (13)