71 I am satisfied, in the circumstances of this case that the Plaintiff, having received nothing, pursuant to the Will, out of the deceased's estate, which estate is very large, has been left with inadequate provision for his proper maintenance and advancement in life.
72 Having found, as a matter of fact, that there was inadequate provision for the Plaintiff under the deceased's Will, the second stage of the test in Singer v Berghouse requires the making of a holistic, and multi-faceted, judgment evaluating the proper provision that ought to be made for him Kalmar v Kalmar [2006] NSWSC 437 at [67] per White J; Foley v Ellis at [3] per Basten JA. I turn now to the nature of that provision.
73 Mr Marshall who, with Mr Darcy-King, appeared for the Plaintiff, submitted that the Plaintiff needed some permanent accommodation in Perth, needed the mortgage debt secured on his Kalbarri house to be repaid, so that he could receive the full rental income, and that the Plaintiff should also have an amount for future living expenses and contingencies. The Plaintiff sought provision in the amount of $1.0 million on the following basis:
(a) $650,000 to purchase a residence in Perth Western Australia including all transaction and relocation costs (for example legal costs, stamp duty and moving himself and chattels);
(b) $25,000 for acquisition of furniture and white goods;
(c) $25,000 for the acquisition of a utility motor vehicle, registration and insurance costs;
(d) $50,000 to discharge of mortgage over the Kalbarri property; and
(e) $250,000, on account of contingencies and for future living expenses.
74 Mr Ellison SC, in his written submissions, accepted that "the Plaintiff could probably be described as being in relative need". However, he submitted that no provision for the Plaintiff should be made because the Plaintiff:
(a) made no direct contribution to the acquisition, or improvement, of any property forming part of the deceased's estate;
(b) had facilitated the deceased's use of illegal drugs;
(c) had been a poor role model for the deceased's children;
(d) had received significant benefits during the lifetime of the deceased;
(e) did not deny that he would continue to use illegal drugs, which could lead to his premature death;
(f) might be subjected to a jail sentence in the future;
(g) has a property in Kalbarri, in which he could live.
75 It was also submitted, on behalf of the Defendant, that the community would not accept that making provision for a person who has engaged in, and who gives evidence that he intends to continue to engage in, drug use is "proper". In his written submissions, on this topic, Mr Ellison SC points to some authorities concerning what was called "conduct disentitling". He refers to Hastings v Hastings [2008] NSWSC 1310, a decision of White J, in which case the authorities are referred to.
76 I do not accept the Defendant's submission. The submission ignores the nature, and duration, of the relationship of the Plaintiff and the deceased, and, importantly, that, during the whole of their relationship, the drug use was engaged in by both of them. Furthermore, there can be no suggestion, in this case, as there was in Hastings v Hastings, that "the plaintiff's criminal conduct affected the deceased, or that she felt that she was shunned and was embarrassed" by it. Even the Defendant appears to have tolerated the deceased's drug use, presumably, because he realised it could not be prevented without her co-operation and desire to do so.
77 Also, in Hastings v Hastings, the plaintiff's impecuniosity was the direct result of the confiscation of his property by United States authorities and that the confiscation was the direct result of his crimes. I do not accept that the Plaintiff's financial position, in the present case, is as a direct result of his drug taking.
78 Finally, in this case, the Plaintiff's involvement with drugs does not detract from his contributions to the deceased. In my view, that conduct does not warrant the refusal of an order in his favour if an order is otherwise appropriate.
79 Mr Ellison SC did concede, in his oral submissions, that the Plaintiff had made some contribution to the deceased's personal welfare as a de facto spouse and some contribution to the maintenance of the homes in which they lived. He also acknowledged the closeness of the relationship of the Plaintiff and the deceased and its duration.
80 The Defendant is concerned that any provision made for the Plaintiff will be used to purchase drugs. However, as I have said, I am not satisfied that all of the withdrawals made out of the deceased's bank account, were made by, or for the sole benefit of, the Plaintiff. It seems more likely, bearing in mind the type of drugs that the deceased consumed, and their cost, that it was she who withdrew most of the funds to enable the purchase of drugs. I also note that, despite the fact that the Plaintiff has received no financial assistance from the estate for almost three years, he has been able to retain the Kalbarri property and limit the borrowings on it to $50,000, which amount, so far as is known, was used for legitimate purposes.
81 There can be no doubt, and the Plaintiff did not suggest otherwise, that he did benefit from the generosity of the deceased during her lifetime. She paid off his mortgage ($50,000), paid for a holiday for him, purchased a car and motorcycle, which he used, and, otherwise, she supported him, generally for the whole of their relationship. They did not live an extravagant lifestyle. She also provided him with accommodation, which enabled him to receive rental income. He has continued to receive rent-free accommodation after her death. I take these matters into account in reaching my conclusion on the quantum of provision that ought to be made for the Plaintiff.
82 Like the Defendant, I am concerned that the Plaintiff remains addicted to marijuana and that, on occasions, he takes heroin. However, it does not follow, in a case where it can be shown that a plaintiff has a drug, or an alcohol, addiction, or, has a poor work record, that the Court is automatically prevented from making an order. For example, in re Fletcher (deceased); Fletcher v Usher (1921) NZLR 649, the Court made provision for a plaintiff with a chronic alcohol problem. In Green v Perpetual Trustee Co Limited Supreme Court of New South Wales, Hodgson J, 10 July 1985, unreported), an order was made in favour of a Plaintiff who was a heroin user. The order was one that involved a protective trust to make sure that the plaintiff was benefited, yet did not spend his money on heroin.
83 In McLean v Public Trustee [2001] NSWSC 970, a claim was made by a daughter with a gambling problem. An order was made for a legacy upon conditions as to its use. In Michael Bienke v Brian Bienke; Estate of the late Harold Bienke [2002] NSWSC 804, an order was made in favour of a grandson who had a chronic history of drug and alcohol abuse and a gambling problem.
84 Neither does the fact of the Plaintiff's criminal history disentitle him to provision. As White J noted in Hastings v Hastings, at 40, "a criminal record is not as such a bar to a claim under the Act. A good example is Hoadley v Hoadley (Supreme Court of New South Wales, Young J, 17 February 1987, unreported). There, Young J (as his Honour then was) made an order for provision in favour of an adult child who had spent 20 years in prison, where his Honour considered there would be good prospects of rehabilitation which an order for provision would promote".
85 Submissions were made on whether there should be terms attached to any lump sum ordered to be paid to the Plaintiff out of the estate, to ensure that it is not used in any way for the purchase of drugs. I note that in Bondy v Vavros Supreme Court of New South Wales (Young J, 29 August 1988, unreported) his Honour said:
… in one sense it does not matter if I form the view that the plaintiff is a spendthrift. If a person is entitled to an order what they do with the money that they receive is their business and it is none of my affair if I very much fear that the money will be wasted on wine women and song in a short period of time.
86 In Howarth v Reed (Supreme Court of New South Wales, Powell J, 15 April 1991, unreported) Powell J (as his Honour then was) referred to the possibility of a provision not being applied by the person for the purposes intended by the Court. His Honour said at 43:
While, as will be apparent from what I have earlier written, I am deeply concerned at what I regard as the totally unrealistic approach to the management of their affairs adopted by Mr and Mrs Howarth, which approach, if persisted in, will almost inevitably lead to the benefit of any Order which might be made in Mrs Howarth's favour being dissipated in short order, it seems to me that, while that is a matter which may bear on the form of Order to be made, it is not a matter which ought, without more, to be regarded as disqualifying Mrs Howarth from receiving the benefit of any Order to which she might otherwise be entitled. Nor is this a novel view, for a similar approach is reflected in the following passage in the judgment of Young J in Bondy v Vavros…
87 In Green, Hodgson J said that the Court could not "have regard to any likelihood of dissipation of any provision for the plaintiffs except in relation to the actual order" which was made, and that "such consideration could suggest that there should be terms attached to the order to prevent dissipation".
88 Despite these last-mentioned authorities, I am of the view that, in this case, the Plaintiff should not have absolute control of the whole of the provision to be made for him.
89 During the submissions, I raised with counsel that I was considering making provision for the Plaintiff which included the provision to him of accommodation for his life, if he did not wish to live in his Kalbarri property, a capital sum which was to be used to pay, directly to third parties, his debts, the cost of the household goods he required, and for a car that was also required, as well as a capital sum which could be retained by the Plaintiff, uncontrolled by a third party. Each party accepted that, if an order in favour of the Plaintiff, was to be made, that was appropriate provision in all the circumstances, although Mr Ellison SC did also submit that any uncontrolled capital sum should not be very large.
90 I was asked to set out, in this judgement, the amount that is to be paid out of the estate, which amount, in total, is to be used to purchase the accommodation (including associated costs and expenses) for the Plaintiff, for his life, to discharge of the mortgage debt secured on the Plaintiff's Kalbarri property, to provide some capital to be used for the purchase of the household goods and a car, to pay the moving costs of the Plaintiff, and the other debts and likely expenditure of the Plaintiff. The parties, in the first instance, are to discuss precisely how this sum is to be divided between the various components to which I have referred. If agreement cannot be reached, I shall determine the different amounts.
91 I am of the view that $630,000 would be adequate, and proper, in all the circumstances for those purposes, only part of which amount is capital, which would not revert to the estate on the death of the deceased.
92 In addition, I consider that there should be a very modest (in the context of the size of the estate) capital sum available, absolutely, to the Plaintiff, himself, which can be used by him to provide for exigencies of life, to provide a small nest egg for his old age, and to provide an additional income. In my view, this amount should be $65,000.
93 If the Plaintiff does not use the accommodation purchased for him, the trustee may use any income received from the accommodation, or from the capital sum, agreed upon or determined, to pay any rent, or accommodation expense, of the Plaintiff, or otherwise, for the benefit of the Plaintiff. The income from the accommodation fund should not be made available, directly, to the Plaintiff, but should be paid to the third party providing the accommodation, or other benefit for the Plaintiff. In the event of any dispute, either party may approach the Court for directions.
94 In making this type of order, I appreciate that the Plaintiff may no longer be entitled to receive the whole pension. However, it seems to me that he will have available the whole of the net income from the Kalbarri property, without the need to use it to make mortgage repayments. He will also have the benefit of other income from the small capital sum he is to receive absolutely. On the figures that he has provided in his evidence, the income should be sufficient to meet his reasonable daily expenses. He will, also, retain, so long as he wishes to, the Kalbarri property, which will be unencumbered.
95 I note that the parties have agreed that the Plaintiff will also be entitled to occupation of the Elanora property until about 31 October 2010, or such other date as the parties may agree. That should be included as part of the provision that the Plaintiff is to receive out of the estate of the deceased.
96 It will be appreciated that the making of these orders will not impact upon the provision made for the children of the deceased.
97 In the circumstances, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons.
98 I shall stand the matter over for two weeks for the making of the orders that the parties ask me to make.
99 If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.