WANG V. D'AMBROSIO [1999] NSWSC 227

53 He submitted, because there was no use of the word "de facto" in the Family Provision Act but only use of the word "wife", a higher test was required to bring a person within the definition in the Family Provision Act. He submitted that, in particular, there had to be a mutual mental element, an acceptance by both that Miss Wang was living with Mr Newman as his wife. He submitted that it was appropriate that a higher test be imposed, because of the problems of opposing a claim brought against a deceased estate. 54 Mr Dupree submitted that in any event the test laid down under the De Facto Relationships Act in cases such as D v. McA (1986) 11 FLR 214 had not been satisfied. There was no combination of financial resources, or holding out to the community of the status of husband and wife, only the status of an engaged couple. The relationship was only about eight months, and the evidence about arguments and various statements by the deceased indicated that it did not have a character of stability and permanence. He pointed to material from Miss Wang's book suggesting that the relationship developed gradually to becoming ultimately one where she was a fiancee, which was not the same as a de facto partner. He pointed to a failure to call witnesses who could have supported the plaintiff's claim, such as Mr Gibson and Mr Hazard. He submitted that there was no evidence that, during 1994, Miss Wang was ever introduced as Mr Newman's wife. 55 I do not accept that any different test applies under the relevant definition in the Family Provision Act than that which applies under the similar definition in the De Facto Relationships Act. 56 In my opinion, the fact that the public presentation of the relationship was that of an engaged couple is by no means inconsistent with it being true that Miss Wang was, at the time of Mr Newman's death, living with him as his wife on a bona fide domestic basis. In my opinion, the factors referred to by Mr Wilson do strongly support the view that that indeed was the situation. They had been living together substantially as if they were husband and wife from January 1994 until 5 September 1994. There was very substantial mutual support, there was very substantial common use of property. It seems to me that the fact that they intended to marry a little time in the future confirms that there was a degree of mutual commitment, which supports rather than conflicts with the existence of the required relationship. I am satisfied that they were committed to marry each other, and that this commitment was very genuine on both sides. I am satisfied that the requirements of paragraph a(ii) of the definition of eligible person are satisfied. INADEQUATE PROVISION 57 The next question is whether I am satisfied, in terms of s.9 of the Family Provision Act, that the provision made for Miss Wang is inadequate for her proper maintenance, education and advancement in life. 58 Mr Wilson referred me to Singer v. Berghouse (1994) 181 CLR 201, and submitted that I ought have regard to Miss Wang's financial position, the size of the estate, the totality of the relationship between Miss Wang and the deceased, and other persons who have legitimate claims upon the deceased's bounty. He submitted that I should not be satisfied there were any persons, apart from the plaintiff, who had such a legitimate claim. He referred me to Re Fulop Deceased (1987) 8 NSW LR 679 at 681. 59 He submitted that Miss Wang was left without adequate provision because she had financial needs in the form of requiring a residence, paying University fees, requiring a motor vehicle, paying debts, and having a fund to cover day to day expenses and vicissitudes. Further, the nature, duration and intensity of the relationship was such that the deceased ought to have made provision; the plaintiff's contribution to the welfare of the deceased had been substantial; the estate was of sufficient size; and that the deceased could comfortably provide for the plaintiff. 60 Mr Dupree submitted that the onus was on the plaintiff to bring satisfactory evidence to the court to show her financial circumstances and thus to show her need. He submitted that I could conclude that the plaintiff was astute, entrepreneurial and skilful, and had been involved in many businesses. The evidence she had produced about those businesses was insufficient for the court to come to a satisfactory conclusion about her needs. I have already briefly outlined some of those submissions in dealing with the question of her ability. He submitted that I could infer that her resignation from the Asian Pacific Group and application to undertake further study was calculated as presenting a picture of need. 61 He submitted that debts the plaintiff alleged to have to friends had not been proved. He submitted that the plaintiff had not shown there was any necessity to incur legal costs in relation to the inquest. There had been no accusation brought against her by the police or any official person, and it was not shown to be at all necessary for her to have incurred those costs. He referred me to evidence where the plaintiff said that she had some suspicion of the police, and talked about being under police supervision; and he submitted that this did not suggest any reasonable basis for incurring the costs. He also pointed to her success in providing for herself over the last few years, the $50,000.00 she received from the Victim's Compensation Tribunal, the $24,000.00 to $30,000.00 she received from the book. He submitted that there was evidence of proceedings contemplated against the State of New South Wales in respect of the death of Mr Newman, and that too he submitted was a matter that should have been disclosed and explained in order to have a full appreciation of the plaintiff's financial position. 62 In my opinion, the plaintiff Miss Wang did have a legitimate claim on the bounty of Mr Newman, by reason of being his de facto spouse, by reason of the commitment to marry that they had both undertaken and continued with, and by reason of eight months of very significant mutual support. Upon Mr Newman's death she was left with no place to live. As submitted by Mr Dupree, it appears that any licence she had to remain in the house was revoked, so she was liable to be immediately evicted. She had no substantial assets of her own. I think it is fair to say that she did have substantial skills and resourcefulness to make her own way in the world, but I do not consider that that means that she did not need provision for proper maintenance education and advancement in life. There is some force in Mr Dupree's submissions about the unsatisfactory nature of the material I have about the financial means of Miss Wang, and her activities between the date of death and the present, but as I have said, on the whole I am satisfied that the picture she has given is substantially accurate and that, at this time, she still has no significant assets. 63 Looking at the competing claims, there is no doubt that Mr Newman's mother had a very close relationship with him, and provided considerable support and assistance to him, both before and after the relationship with Miss Wang commenced. From the point of view of the relationship, her claim would be a strong one. However, I have absolutely no evidence whatsoever as to her financial situation, and that makes it extremely difficult for me to make an assessment of what the strength of her claim is. 64 So far as Mr Newman's brother is concerned, there is some evidence as to his financial situation, which I have outlined; although no evidence as to the nature of the relationship with the deceased, or as to any mutual assistance or support they may or may not have given each other over the years. In those circumstances, again, it is extremely difficult to come to a satisfactory view as to the strength of the claim. 65 I have outlined the deceased's assets at the date of death. The effect of the will was that the house, then considered to be worth $180,000.00, and furniture then considered to be worth $20,000.00 was given to Mr Newman's mother. Out of the remaining assets of around $300,000.00, $100,000.00 was given to the brother, $30,000.00 to friends, and the remaining approximately $170,000.00 was to be the subject of the charitable gift to which I have referred. 66 Although this is not the question I have to decide (I have to look at the question of adequacy at the present, not at the time of death), as one step towards doing that, I think it is pertinent to consider whether there was adequate provision considered at the date of death; and in my opinion, it is plain that there was not. In my opinion, adequate provision at the date of death would have required something like one year's accommodation and something like one-third of the estate. 67 As I mentioned, the situation has changed substantially since the date of death. The house is now said to be worth about $240,000.00, and superannuation turned out to be about $240,000.00. $40,000.00 rent has been received but, as I have already mentioned, the defendants have paid legal costs, not just of the Family Provision Act proceedings but also of the possession proceedings and the probate application, totalling $184,000.00; some $7,000.00 has been paid in storage fees (I am not sure whether that is included in the $184,000.00 or not); and $1,700.00 was paid to a document examiner, to give advice as to whether the two letters I have referred to were genuine; and I have referred to the additional legal costs that are expected still to be due. 68 So far as the plaintiff's position is concerned, she received $50,000.00 from the Victim's Compensation Tribunal, but apparently has substantially lost that in the business venture in Western Australia. 69 She has what appears to be a potential liability of $60,000 for legal costs for the inquest. In relation to the incurring of those costs, the plaintiff gave evidence that she considered she could be a suspect. She gave evidence that she was questioned by the police, that she asked the police whether she was a suspect, and that the police replied to the effect they would just have to complete their investigations; and she gave evidence to the effect that the statements presented at the inquest were not provided to any of the participants at the inquest until each witness was called. There is in evidence a piece of transcript from the inquest in which counsel representing Mr Newman's family sought to cross examine Miss Wang at the inquest in order to put to her motives that she may have had concerning the murder of Mr Newman. In those circumstances, although it is patently clear now that she never should have been a suspect in anyone's mind, I cannot say it was unreasonable for her to have wanted legal representation at the inquest, and to have incurred costs. I can make no comment on the amount of the costs. 70 Looking at what is now in the estate, Mr D'Ambrosio says it amounts to $402,000.00 which includes $20,000.00 of legacies which have apparently been paid, $8,000.00 in costs orders owing by Miss Wang to the estate, and $20,000.00 of furniture, the realisable value of which I am not in a position to find. From this apparently would come $93,000.00 of costs, if I make a finding in favour of the plaintiff and order that the costs be paid out of the estate. This would leave something like $250,000.00 nett, if all the costs I have referred to are allowed as costs out of the estate. 71 Looking at the plaintiff's current needs, it seems to me that the need for accommodation for a year or so after the death, which now translates into a defence to the claim for rent against her, should still be provided for. She has, it seems, a liability for $60,000.00 legal costs, although I cannot comment on whether it would be enforceable in full against her. She needs money for university fees and vicissitudes. In my opinion, in the present circumstances, the provision for her was inadequate. WHAT ORDER SHOULD BE MADE? 72 It is plain that the intended gift to charities cannot now be met. There is no money which would possibly remain as a residuary gift. 73 As I understand the order of application of assets, if there was only $250,000.00 in the estate, all the pecuniary legacies would abate since they abate prior to, as I understand it, the specific gift of the real estate. Assuming I make an award to the plaintiff which would come off the $250,000.00, plainly that would eliminate all the pecuniary legacies and leave any balance to be paid to Mr Newman's mother as a person given a specific gift of the real estate and furniture. I might mention that, quite early in the proceedings, the executor approached the Court for authority to pay the $10,000.00 legacies and, as I understand it, that authority was granted in circumstances where the result of the case appears to be that those legacies are completely wiped out. I am not sure where that leaves the question of entitlement to those legacies. 74 In any event, I have to arrive at what I think is the order which ought, having regard to the circumstances at this time, be made for the maintenance, education and advancement in life of the plaintiff. Having regard to all the circumstances I have referred to and, in particular, the lack of evidence concerning the strength of the competing claims which I have referred to, in my opinion an appropriate order is a sum of $150,000.00. CONCLUSION 75 On the question of costs, Mr Dupree has submitted I should order costs on the usual trustee or indemnity basis in favour of the executor. 76 In my opinion it is not appropriate to do that in this case, for two reasons. One reason is what appears to be the disproportion of the costs incurred to what was involved in the case, both in terms of the size of the estate and the issues being fought. The other is that it seems to me that the case has been conducted with some animus on the part of the executor as fairly extreme adversary proceedings. In those circumstances, while I am not prepared to deprive the executor of costs, I think the order for costs should be on a party and party basis, so there has to be some justification given for the amount of costs that have been incurred. 77 Particular orders are sought by the plaintiff in relation to the immediate payment of some money out of a particular fund. There also may be a question of particular orders as to how the order is to be borne by the estate. For the purpose of further submissions on those matters I will refrain from making the final order today. 78 I stand the matter over for final orders to 9.30 Friday 26th March 1999.

I certify this and the preceding 21 pages to be a true copy of the reasons for judgment of Justice D.H. Hodgson Date 22nd March 1999 Associate

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Judgment (10 paragraphs)

Cases Cited (5)