Nesbit v Public Trustee of Queensland
[2003] QDC 322
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- Unreported Judgment
- Nesbit v Public Trustee of Queensland[2003] QDC 322
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Nesbit v Public Trustee of Queensland[2003] QDC 322
Nesbit v Public Trustee of Queensland[2003] QDC 322
DISTRICT COURT OF QUEENSLAND
CITATION: | Nesbit v Public Trustee of Queensland; Estate Ian Robert Nesbit (Dec’d) [2003] QDC 322 |
PARTIES: | MARITA RUBY EVELYN NESBIT Applicant v PUBLIC TRUSTEE OF Queensland (as Administrator of the Estate of Ian Robert Nesbit (Dec’d) Respondent |
FILE NO/S: | Southport D829/2001 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court of Queensland at Southport |
DELIVERED ON: | 19 August 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 11 July 2003 |
JUDGE: | Alan Wilson SC, DCJ |
ORDER: | Order that the application of Marita Ruby Evelyn Nesbit be dismissed. Further order that the application of Joan Lorna Nesbit be dismissed. |
CATCHWORDS: | FAMILY PROVISION – APPLICATION BY DE FACTO SPOUSE – de facto relationship of over 30 years – competing claims of de facto spouse and adult sons of marriage – whether applicant left without adequate provision for her proper maintenance and support – relevance of moral claims and moral duties after Singer v Berghouse – application dismissed. Succession Act 1981 Cases considered: Blair v Blair [2002] VSC 95 Bosch v Perpetual Trustee Co (1938) AC 463 Chapman v Chapman [2001] QCA 465 Collicoat v McMillan (1999) 23 VR 803 Dun v Dun (1959) 100 CLR 361 Golosky v Golosky, unreported (1993) NSW CA, 5 October 1993, CA 40012/91 (BC9302134) Grey v Harrison (1997) 2 VR 359 King v White (1992) 2 VR 417 Luciano v Rosenblum (1985) 2 NSWLR 65 McCosker v McCosker (1957) 97 CLR 566 re Elwell (1977) Qd R 141 (FC) re Williams (Dec’d) unreported, Supreme Court of Queensland, 23 November 1988, OS 369/1988 Singer v Berghouse (1994) 181 CLR 201 White v Barron (1980) 144 CLR 431 |
COUNSEL: | Mr R Peterson for the Applicant Mr B Nickel for the Respondent |
SOLICITORS: | Collas Moro Ross for the Applicant Official Solicitor to the Public Trustee of Queensland, Respondent |
- [1]This is an application under Part 4 of the Succession Act 1981, now commonly called a ‘Family Provision’ proceeding. It concerns the estate of Ian Robert Nesbit who died at the Gold Coast on 17 February 2001, aged 77. The original applicant was Marita Nesbit (‘Mrs Nesbit’) who claims further provision on the basis she lived with him as his de facto spouse[1] for the last 36 years of his life. Shortly before the trial in her action a claim for provision was also raised by the late Mr Nesbit’s lawful widow, Mrs Joan Nesbit (‘the widow’). Other interested parties are the Public Trustee (as executor of the estate) and two adult sons of the marriage of Ian Nesbit and Joan - Peter Robert Nesbit, now aged about 54 and David Cecil Nesbit, about 50.
- [2]Mr Nesbit’s last will was made with the Public Trustee on 4 September 1996. It appoints that institution to be executor and trustee and then disposes of the estate by giving Mrs Nesbit a life interest in the deceased’s half share in a home at 14 Salacia Avenue, Mermaid Waters, and a legacy of $11,000; legacies of varying smaller sums are given to Peter and David, and their children; and, on the lapse of the applicant’s life interest in the home that interest passes to the sons in equal shares. They also share the residue. Various provisions apply in the event any gift lapses, but these are the major provisions of the will. The widow receives nothing. (The will also purports to dispose of a car, caravan and trailer but the Public Trustee accepts Mrs Nesbit’s claim that these were assets she owned jointly with the deceased which pass to her by survivorship.)
- [3]The Public Trustee obtained an Order to Administer on 10 April 2001. The only significant assets are a parcel of investments, and the deceased’s interest in the Mermaid Waters property which he owned as tenants in common with Mrs Nesbit in equal shares. In June 2002 the investments were worth about $90,000, and at trial $83,000. The deceased’s one-half share in the home has undergone a significant increase in value during the property boom on the Gold Coast in the past two years. Mrs Nesbit’s first affidavit estimated the house was worth $210,000. The Public Trustee’s first valuation in mid-2001 estimated it at $220,000 but a year later that had grown to $280,000 and, by the time of the hearing, there had been a further dramatic increase to $425,000.
- [4]In the result the estate had a value around the time of death of around $200,000 and, at the time of trial, about $295,000. Unfortunately, the costs of this action will significantly reduce that figure. The Public Trustee has yet to take all its costs, estimated at trial at $21,500. It is also entitled to commission in due course, which I was told would not exceed $12,000. The applicant’s advisors estimate her costs to judgment at about $30,000. If the applicant succeeds and recovers her costs (or even if she does not, but is indemnified for them) the nett estate would be only about $230,000 of which $212,500 is the half-share in the home, leaving insufficient to pay the various legacies. The value of the estate at both the time of death, and now is relevant[2].
- [5]When the deceased met Mrs Nesbit sometime in the 1960s he was a bank manager in Melbourne living with his wife Joan, and their sons Peter and David. Mrs Nesbit claims that in 1965 she and the deceased began living together as husband and wife, and did so until his death. This was vehemently disputed by the widow and sons who said the deceased did not leave the matrimonial home until late 1970, on an occasion they were able to consistently describe. I found their evidence on this point convincing, and prefer it to Mrs Nesbit’s.
- [6]Mrs Nesbit also says that in 1969 she began at the insistence of the deceased to use the surname ‘Nesbit’, and she changed her surname by deed poll in 1974. Mr Nesbit retired from the bank in 1970 and they purchased the lease of a hotel at Pillagar, NSW and ran and managed that enterprise and, later, another hotel at Macleay River until 1984, when they moved to Queensland. They purchased a home at Biggera Waters which was later sold and in about the mid-1980s (the applicant’s affidavits are not precise about dates) bought the Mermaid Waters home where she still resides. In the late 1980s they had an icecream van which was run as a joint enterprise for several years, but they have been retired from the workforce since at least 1990. Both before and after retirement they travelled overseas a great deal, sometimes for lengthy periods. The deceased was, it may be deduced, a war veteran and some of this travel was to parts of South East Asia where he had served. The other clue to his war service was his Veteran’s pension, and ‘Gold Card’ which entitled him (and now Mrs Nesbit) to various benefits including medical treatment.
- [7]While they were holidaying in Bali in 2000 he became ill, and lung cancer was discovered. For the remainder of his life he was quite sick, requiring care at home and hospital inpatient treatment. I accept Mrs Nesbit carried a heavy burden caring for him when he was home. I also accept her evidence that before Mr Nesbit’s final illness they enjoyed a comfortable retirement together in a large home, with regular holidays and overseas trips; and, that this was the product of hard work each performed during the early years of the relationship at the hotels.
- [8]Less certainty attaches, however, to their respective financial positions when the relationship commenced, and during it. Mrs Nesbit says she owned properties at Moorabbin and Rosebud in Melbourne, and Bairnsdale and the Lakes District in rural Victoria and that she sold the Moorabbin property to obtain the 2000 pounds each agreed to contribute to the cost of purchasing the lease of the hotel at Pilligar; and Mr Nesbit obtained his similar contribution by mortgaging his former matrimonial home, in which the widow was still residing.
- [9]No more detailed information is provided about their joint financial affairs save that she says she lent him $11,000 so he could contribute the sum of $50,000 to the purchase of the Macleay River hotel enterprise and, again, she contributed the same amount. That loan, and an attempt by the deceased to repay it, may explain the rather precise legacy of $11,000 the will provides for her. I do not know what happened to her other properties, or anything more about their joint financial affairs during the 30 year relationship.
- [10]At the date of death the applicant had her half share in Mermaid Waters, and investments of $75,000. By May 2003 she had investments of $81,520 including a bank account containing $9,540, a car worth $8,000, and the contents of the home and the trailer, and caravan none of which are valued. Her half interest in the home now has an estimated value of about $212,500. For reasons which were not made clear she has also, since Mr Nesbit’s death, incurred a credit card debt now standing at about $12,000. The house requires repair and maintenance work, and just how that is to be payed for has not been resolved between her, the executor, and the sons as remaindermen.
- [11]Her affidavits were also less than informative about her income and expenses, and the position was not clarified by oral evidence. The figures for fortnightly expenses in her last affidavit showed a surplus of income from her pension over outgoings, even before her other income from investments is brought into account, but did not appear to take household maintenance into consideration, nor explain the expenditure which created the credit card debt. She also has the benefit of the ‘Gold Card’ which, she said, will pay for medical treatment but not her medications. She also receives a fortnightly cleaning service in her home which she said was ‘government funded’.
- [12]What was also not revealed in her first affidavit was the presence in her home of a man called Noel Irwin, and his payment of board to her. Peter and David raised this in their affidavits and in her subsequent affidavit in reply and in oral evidence she said, and I accept, that she and the deceased took Mr Irwin and his brother into their family many years ago, at Pilligar, and cared for them in exchange for some work at the hotels; that both suffered intellectual disabilities and could not care for themselves; that Mr Irwin has lived with the family ever since, as did his brother until his death some years ago; that he is now 78, a pensioner, and does not work (although he helps Mrs Nesbit around the home); and that she felt an obligation to continue to provide him with a home, and to care for him. The affidavit and report of Jemmah Lousley, Occupational Therapist, confirmed Mr Irwin had some obvious intellectual deficits and limited ‘living’ skills although he scored a mark indicating a capacity for independent living on a test called the ‘Modified Barthel Index’.
- [13]I accept that Mrs Nesbit and Mr Irwin occupy different levels of the Mermaid Waters home and that there is no relationship between them save that described above. She lives upstairs (using a kitchen downstairs) and he occupies the ground level. It is a large dwelling with 5 bedrooms, 3 bathrooms, 2 lounge rooms and a swimming pool. There is also a self contained ‘granny’ flat to the side of the home which, Ms Lousley said, was presently unoccupied.
- [14]The lack of precision in Mrs Nesbit’s affidavits might ordinarily be attributed to her age and the long periods which have passed since some of the events she describes, but a number of aspects of her written and oral evidence compelled the conclusion she was a less than credible witness. I am satisfied that she was wrong when she said the de facto relationship with the deceased began in 1965, and prefer the evidence of the sons and the widow that he did not quit the matrimonial home until late 1970 although he was, before that time, spending nights with the applicant and was in all probability involved in some kind of relationship beyond friendship with her.
- [15]Her evidence about Mr Irwin was initially less than forthright and, later, confusing. Her failure to mention his presence in the home or her care for him or the board he pays is on any view surprising. Other aspects of her evidence about him and his position in the house were contradictory. She disavowed any intention or interest in seeking a ‘Carer’s’ pension for herself in respect of the help she gives him on the grounds it would be ‘greedy’, but it transpired in her oral evidence that an application had in fact been made[3]. She claimed Mr Irwin could not afford to pay more for his board, but it became clear she had no clear idea what his financial position is[4].
- [16]It was submitted on Mrs Nesbit’s behalf that her expressed concerns about Mr Irwin’s future care, seen in the light of the many years in which she and the deceased provided a home for him, meant his circumstances were an element in her claim. There was also evidence, however, from the Occupational Therapist, Ms Lousley of a level of ‘interdependence’ between them where she assists him with ‘cognitive’ tasks such as planning transportation, and he helps her with heavier physical jobs around the home.
- [17]The history of the relationship between the deceased, Mrs Nesbit and Mr Irwin might be said to give rise to a moral duty on the deceased’s part to recognise an obligation for the survivor to continue to provide that care, and to make provision to assist Mrs Nesbit to discharge that obligation if circumstances permitted. Certainly, it has been accepted by courts exercising this jurisdiction that a will-maker ought to take into account events which are reasonably foreseeable[5]. The force of the argument is much diminished, however, by the lack of information about Mr Irwin’s own resources, and Mrs Nesbit’s contradictory evidence about her willingness to accept government benefits as payment for the care she provides. Ultimately I was not persuaded the obligation she felt she had, whatever its nature, was one which should tell in a significant way in her claim.
- [18]The sparse evidence suggests she and the deceased kept their finances separate and there was not the kind of intermingling common to married partners; there do not, for example, seem to have been any joint bank accounts or investments, and the home was owned as tenants in common. They contributed funds as necessary, it appears, for household outgoings[6]. Her third affidavit purported to explain this separation of finances as springing from the deceased’s fear that his wife would pursue him for a financial settlement, and from his belief some assets would, thereby, be protected. That has a certain logic, but it is inconsistent with other evidence from Mrs Nesbit[7] that the deceased transferred the former matrimonial home to the widow (at some unstated time after the separation) in exchange for her agreement ‘not to bother him again’[8]. As an explanation it also becomes less plausible with the passing decades.
- [19]This element of the relationship between the applicant and the deceased, coupled with the precise legacy to her suggesting repayment of an old debt, and the fact he refers to Mrs Nesbit as his ‘friend’ in the will raises some questions about the nature of their de facto marriage. The only explanation for his failure to divorce his wife or remarry the applicant despite the passing of many years comes from Mrs Nesbit, who ascribed it to ‘religion’, but the nature of the religious beliefs or objections was never stated. Those puzzling aspects of her case must be balanced, however, against the undisputed fact that for over 30 years they cohabited, and worked, and travelled together. Ultimately, I am persuaded the applicant qualifies as a de facto spouse in the terms of the legislation but, at the same time, less than confident that she has been forthright about all the elements of the relationship, which clearly differed in some respects from the norm. Of course, every relationship is different and it may well be that these slightly unusual aspects reflect the deceased’s wishes as much as, or rather than, her own.
- [20]The only other matters touching her claim directly are her health and future needs. She suffers from diabetes, asthma and coronary artery disease, and may require future hospital inpatient treatment for the first ailment, which her GP Dr McCombe says is not well managed. She has a life expectancy of about 10 years, on the Tables. She can still care for herself and drives a car, and plainly treasures her independence.
- [21]There was some secondary evidence from her solicitors and Ms Lousley about the cost of home and institutional care and of accommodation units in aged care facilities, ranging in price from $125,000 for a one-bedroom unit to $340,000 for three bedrooms. In-home care can, potentially, be very expensive but the fact she receives some home help without cost already and may qualify for care packages described by Ms Lousley (called ‘CACP’ and ‘HACC’) suggests that even if her health deteriorates further and the level of home assistance needs to be increased, she ought not face huge costs. These possible expenses are all, of course, uncertain because Mrs Nesbit herself seemed keen to stay in her own home and her future health, or needs, are unknown. At the same time, readily foreseeable contingencies must include the prospect of a decline in her ability to care for herself and a need for more help at home, or a necessary move to an aged care facility.
- [22]Each son had a less than normal father/son relationship with the deceased. I accept their evidence and that of the widow that he was not a good parent when they were growing, seeming quite uninterested in them and miserly with his income - to the point his wife took in boarders, and sought employment as soon as she could after having the children, to maintain them and the household. A vivid example of his lack of interest, and apparent reluctance to spend his money on his family occurred during the marriage (ie, when the parties were still cohabiting): Mr Nesbit took long service leave and travelled overseas for 3 months, but neither his wife nor sons were invited to accompany him. Peter and David also related instances of unpleasantness and disruption in the home after he took up with the applicant and it was clear each had been greatly affected by events around 1965-70, but were also being careful not to speak too ill of the deceased with whom, as I also accept, they managed to re-establish friendly relations in the last 6 or so years of his life. They visited him, and vice versa, and he got to know their families. Both sons reside in Melbourne but, I accept, there were interstate visits, correspondence and phone calls. Each attended his funeral and relations with Mrs Nesbit have been civil if not warm.
- [23]Both have suffered financial reverses in recent years. Peter lost his job as an electronics engineer, his marriage broke down and he moved back to live with his mother. Fortunately he has since this action began been able to obtain what seems to be a secure job with the Commonwealth Public Service, and he believes there is some prospect of a reconciliation with his wife. He has assets with a value of about $125,000 and hopes to borrow to buy a home, which will cost around $300,000. His employment is secure until he is 65, when he must retire, but he has only $54,000 in superannuation funds and even with contributions during the balance of his working life it seems unlikely his income on retirement will be adequate. He earns $54,000 gross per annum. An attempt was made in cross-examination to suggest a company he has incorporated might generate more income but I was persuaded by his evidence that this is unlikely. His children are grown but Andrew, 24, is still studying. No information was provided about his wife’s circumstances.
- [24]David lost his job with the ANZ bank in 2001. He has engineering qualifications but lack of experience and some recurring health problems make it unlikely, I find, that he will readily obtain work. He and his wife have taken in international students as boarders in the past and he is attempting to set up an agency to match students with suitable homes. It did not impress as the kind of enterprise likely to be highly remunerative. He receives benefits, and has little in the way of assets. His family rents a home and does not own property, and he has no assets beyond a car (which has a debt attached to it) and furniture and personal effects.
- [25]The widow Mrs Joan Nesbit filed one affidavit on 20 June 2003 in which she corroborates her sons’ evidence about the circumstances in which her husband took up with the applicant, and signifies her own wish to claim provision. Her husband was not a good provider when they were together and, after he left, her attempts to support herself were impeded by health problems. She has survived, I accept, by part time work, taking in boarders, and the receipt of pension benefits. She is 81, receives an aged pension, and seems to have no assets except her home, but she does not disclose its value. Nor did she disclose anything else about her financial position and, while it is unlikely she is wealthy, there is no evidence identifying her needs (if any) or the measure of them.
- [26]She did not signify an intention to claim until this affidavit was filed, very late. Concerns the trial may have to be adjourned were allayed when she indicated, through her son Peter, that she was aware of the hearing date but did not wish to appear or make submissions and advanced her claim in reliance upon nothing more than this one affidavit.
- [27]Her evidence about her financial dealings with her husband after their separation is vague. It is not clear if he ever paid maintenance to her, or ought to have done so. It seems likely he ultimately transferred the matrimonial home to her, unencumbered, although he had borrowed against it when he first went into the hotel business with the applicant. There is nothing to suggest she ever took any proceedings against him in respect of these matters. It is impossible to say whether there was a fair division of the matrimonial property. She is silent about all these matters. They had been separated for over 30 years when he died. Her own financial affairs had been clouded by dealings she relates involving the former matrimonial home and a business venture of David’s, which failed with the consequence she had to sell that home and buy her present, smaller residence.
- [28]Her claim is advanced in terms that a bequest would compensate her for her husband’s lack of support and for the years when, she asserts, she lived in hardship while he and the applicant were comfortable and secure. After such a long separation, however, and without proof of some inequity in the resolution of the financial affairs of the marriage (and in light of her own failure to prosecute for that resolution) it is impossible to see how, notwithstanding some natural sympathy for her, the widow can establish a tenable claim under the legislation. The cases show that the moral claim of a spouse will decline with the passing of time, and here the period of separation has been very long[9]. Even if that was not a relevant issue here the widow has failed to discharge the onus she must bear of showing the estrangement, and the things which happened both subsequent to and consequent upon it, have not extinguished her right to claim.
- [29]These cases are never easy, as the Privy Council noted so long ago as 1938[10]. As Harper J remarked in a recent Victorian case[11] the problems are in part conceptual, in part in ascertaining the facts, and in part in applying the relevant principles to the facts once found. In this case, the conceptual difficulty arises from the usual problem reconciling the two concepts of freedom of testation, and moral duty to certain persons or classes. The dichotomy was emphasised in the submissions of Counsel (who were both very helpful), with Mr Peterson for the applicant emphasising the clear duty the deceased owed a partner of 30 years, and Mr Nickel submitting that the deceased had in all the circumstances here (including the moral claims of the sons) discharged that duty in the will. The problem of ascertaining facts is also vivid here, for the reasons already set out.
- [30]The proper approach to the exercise is not, however, in dispute: the High Court has made it clear in Singer v Berghouse[12] that what is involved is a two-stage process in which the court first decides whether or not the distribution of the estate does not make adequate provision for the proper maintenance and support of the applicant (the ‘jurisdictional question’) and, if that question is answered favourably for the applicant, the court must then decide the amount of provision (if any) which should be ordered to be made. Determination of the first question will involve taking into account a multiplicity of factors, varying from case to case but usually including all the competing claims and their relative urgency, the standard of living the parties enjoyed while the deceased was alive, and the respective needs of those with an interest[13]. In Singer’s case the major factors were suggested to be the applicant’s financial position, the size and nature of the estate, and the ‘totality’ of the relationship between the applicant and the deceased and with others who have legitimate claims upon his bounty[14].
- [31]Two preliminary questions arise here: is the applicant’s claim to be treated as that of a widow or, by reason of the terms of the legislation, differently? And to what extent, if at all, are ‘moral’ claims or duties to be taken into account after what was said by Mason CJ, Deane and McHugh JJ in Singer v Berghouse[15] ?
- [32]It is clear the Act treats the survivor of a marriage differently from a de facto spouse. The latter are categorised as ‘dependants’ under s 40, and are required to prove dependency at the date of death, under s 41(1A). In one of the few Queensland cases in which the distinction was remarked, Master McLauchlan QC (as his Honour then was) suggested in re Williams (Dec’d)[16] that it was ‘obviously impossible to regard the applicant as being in an equivalent position as a spouse’[17]. Where however the relationship is so long and, despite the slightly unusual elements noted earlier, bears most of the hallmarks of a marriage, I think any distinction must fade to the point of obscurity. I am comforted in that conclusion by the fact Mr Nickel, Counsel of great experience in the jurisdiction, did not contend otherwise and, indeed, referred me to authority for the proposition (accepted in New South Wales) that a de facto spouse of long standing is to be treated in the same way as a partner of a marriage[18].
- [33]As to the relevance of ‘moral’ issues the effect of the remarks in Singer’s case, mentioned above, has not been explored in detail by Queensland courts but elsewhere the comments have generally been viewed as obiter, and have not found favour. They were forcefully rejected in a decision of the Victorian Court of Appeal, Grey v Harrison[19] and Ormiston J of the Victorian Supreme Court purported to show, persuasively, that they were founded on a misconception in Collicoat v McMillan[20]. Courts in Tasmania and Western Australia have followed a similar course[21]. The Queensland Court of Appeal appears to have implicitly accepted that both moral duty, and moral claim remain live issues here, in Chapman v Chapman[22]. I am satisfied moral issues retain some relevance in the jurisdiction, and should be looked at in globo with the question of need[23].
- [34]Once the applicant’s claim is accepted as one of similar ilk to that of a widow it is clear the deceased’s duty to her was paramount, and she has a strong moral claim. She was entitled, if possible, to be left with a secure home, an income sufficient to permit her to live in the style to which she had become accustomed, and a fund from which she could meet contingencies[24]. The applicant says, shortly, that this duty to her required the testator to devise his interest in Mermaid Waters to her absolutely. It was said that without provision of that order she cannot live independently, free from anxiety or concern in the house which has been her home for 17 years, with the confidence that if her circumstances change she will have sufficient resources to pay for adequate care there, or for a unit or care in an aged care facility.
- [35]I am not persuaded, however, that she has been left in circumstances which reveal need of that order and signify a failure on the part of the deceased to make adequate provision for her proper maintenance and support. She has assets and is entitled to benefits which, so far as can be deduced from her at times sparse or unreliable evidence will be sufficient to meet her immediate and future needs, including contingencies. The home needs some work, but she has funds of her own and will have a legacy (or part of it, at least) and the remaindermen share an interest in maintaining its value. If her health or other eventualities lead her to sell the home she will have sufficient from her share of the proceeds to pay for a unit in an aged care facility.
- [36]Ms Lousley’s report contains lists of Mrs Nesbit’s present and possible future needs for domestic assistance (including gardening and pool maintenance) should she remain in the home for the rest of her life, and suggests that private in-home care can be very costly but it is also clear that subsidised programs are available, and satisfactory. Mrs Nesbit already receives the benefit of subsidised services, and her evidence otherwise simply leaves it unclear what costs, if any, she might be exposed to.
- [37]The therapist’s evidence points to the conclusion that should the applicant’s need for care become significantly greater, a move to different accommodation is likely. Facilities providing a level of care for the aged are of varying types and, as Ms Lousley says, ‘the exact options would need to be ascertained …’. Nursing homes cost up to $77.19 per day, but fees are apparently determined in a manner which is relevant to income (some form of income testing) and can be no more than 85% of the aged pension. Ms Lousley suggests in her report that further enquiries might be made with Centrelink and other organisations about the applicant’s circumstances and how they would be calculated if care of this kind was necessary, but no further evidence about those matters was presented.
- [38]If the applicant wished to leave her home but continue to live independently in a community with some care services available, the various kinds of accommodation discussed in Ms Lousley’s report range in cost from $125,000 for a one-bedroom apartment to between $180,000 and $220,000 for a dwelling with two bedrooms, with weekly service fees of up to $100.00. Additional costs are associated with the provision of meals, or domestic services but no particulars are provided. A three bedroom unit, permitting the applicant and Mr Irwin to continue residing together (and her son to visit) would cost $340,000, but that seems an unlikely prospect in light of their ages, and health; and, in any event, I have no information concerning Mr Irwin’s financial position and ability to contribute to that cost.
- [39]Mrs Nesbit’s present financial circumstances, with the benefit she takes under the will and her ability to realise the value of her share in the home mean that if her circumstances change, she has the resources to meet the needs which are likely to arise. She is by not rich but there seems in reality no element of her present position which should cause her worry. Her finances do not seem to be well managed (the need for a credit card debt is quite unclear), but the fact she has built up her bank account since Mr Nesbit’s death suggests she is able either to save from her income from various sources or, at least, it meets her present needs and she has funds to cover, partly or wholly, the cost of household repairs and maintenance, and replacements.
- [40]Her asset position has certainly been improved by the dramatic increase in real estate values since Mr Nesbit’s death, but that is a matter which falls into the accounting of the ‘jurisdictional question’. With the present value of her interest in the home, and her investments, she appears to have sufficient to meet the contingencies the future might hold. She can stay in her home, with assets and income which appear to meet the likely cost of doing so. She could sell her interest and purchase a smaller residence, or a unit in a facility, and have funds to spare. I am not, for these reasons, persuaded the evidence establishes that she surmounts the first element in Singer’s case.
- [41]This determination can be reached without recourse to the circumstances of the beneficiaries, or any attempt at the exercise of balancing competing needs and the relative strength of the parties’ moral claims, or the making of any further findings of credit against Mrs Nesbit. When those matters are taken into account they strengthen the conclusion. The benefit Peter and David will ultimately take goes some way to discharging the deceased’s moral duty arising from his poor treatment of them during their youth, and the moral claims they have as middle aged adults who have encountered financial hardship to varying degrees and face the later years of their working lives and retirement with, in each case, entirely inadequate resources. On any view, these matters gave them a fairly strong moral claim upon their father’s estate and, on his part, a moral duty to make some provision for them if he could. While his estate is not large by today’s standards, Mrs Nesbit’s circumstances permitted him to balance her needs and moral claims with theirs, and strike a balance of the various factors noted in Singer’s case which was satisfactory, a situation which has been enhanced with the subsequent growth in the value of the estate.
- [42]Mrs Nesbit’s failure to be frank and informative in her evidence and the doubts I have about some aspects of it would have been enough to tip the balance against her had the case been a borderline one. Even if the claim had been allowed to pass the first hurdle, it seems to me that those doubts about her credit and uncertainty about the true measure of her need, if any, would mean that in the exercise of the discretion which occurs in the second stage of the process described in Singer she would not have attracted any award of further provision.
- [43]The application is dismissed. I will hear submissions about costs.
Footnotes
[1] Succession Act 1981, s 5, definition of ‘de facto spouse’; and, s 41
[2] White v Barron (1980) 144 CLR 431 per Mason J at 441
[3] Transcript, p 33 lines 30-36
[4] T 25, ll 32-57
[5] Dun v Dun (1959) 100 CLR 361
[6] T 30, ll 45-50
[7] at T 23
[8] T 23, ll 10-15
[9] See the cases cited at De Groot & Nickel “Family Provision in Australia & New Zealand” second edition, para 2.37
[10] Bosch v Perpetual Trustee Co (1938) AC 463 at 476
[11] Blair v Blair [2002] VSC 95, at para 13
[12] (1994) 181 CLR 201 at 208
[13] McCosker v McCosker (1957) 97 CLR 566 per Dixon CJ and Williams J at 571-2
[14] supra, at 209
[15] supra, at 209
[16] unreported, Supreme Court of Queensland, 23 November 1988, OS 369/1988
[17] see the unreported judgment of McGill SC, DCJ in re Knitter (District Court Maryborough, 11 March 1999, 7/99) in which the cases that have touched the question are collected
[18] Carruthers v Marshall [2001] NSWSC 665
[19] (1997) 2 VR 359
[20] (1999) 23 VR 803, at 816-8
[21] Re Mackinnon [2002] TASSC 3; Vigolo v Bostin [2001] WASC 335
[22] Chapman v Chapman [2001] QCA 465 per Cullinane J; and, see Rosalind Atherton: ‘The Concept of Moral Duty in the Law of Family Provision – a gloss or critical understanding? (2000) 6 ALJH 5
[23] re Elwell (1977) Qd R 141 (FC)
[24] see King v White (1992) 2 VR 417 at 424 – 5, and the cases collected there by Hedigan J; White v Barron (supra); Luciano v Rosenblum (1985) 2 NSWLR 65; and, Golosky v Golosky, unreported (1993) NSW CA, 5 October 1993, CA 40012/91 (BC9302134) and the summary of principles at p 16