Powell v Monteath[2006] QSC 24

SUPREME COURT OF QUEENSLAND

1. MACKENZIE J:  This is an application under Pt 4 of the Succession Act 1981 for an order that further and better provision be made for the applicant out of the estate of his stepmother.  The applicant is one of the stepsons of the testatrix who died on 15 March 2004.  In her last will dated 9 September 2002, the testatrix made a specific bequest of the furniture and other chattels in her residence to a friend and provided that the residue of the estate be divided equally between the Queensland Cancer Fund and the National Heart Foundation of Australia (Queensland Division).  It is estimated that the net sum to be distributed, taking into account the costs of these proceedings, will be of the order of $235,000. 

2. In her will, she expressly said that it was her wish that neither the applicant nor her other stepson (who died on 26 December 2002) receive any part of her estate “because they did nothing for their father, my late husband, and nothing for me, and I do not consider that they are deserving of anything”. It was accepted by the applicant that this statement was evidence of the truth of the assertion (s 92 Evidence Act 1977), with weight to be determined in accordance with s 102 thereof.  Similar assertions were made to the testatrix’s solicitor.  It was common ground that this category of assertion should be treated in accordance with the discussion of principle by Gibbs J in Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 23 ALR 321 at 324, and 336 – 337. 

Background Facts

3. The applicant was 63 at the time of the testatrix’s death. The testatrix and the applicant’s father married on 8 October 1951 when the applicant was 10 years of age. The applicant lived for a time with his natural mother and stepfather and came to Brisbane to live with the testatrix and his father when he was 13. He left school at that age, intending to become a French polisher. However, before he could gain an apprenticeship, the business closed. He then became a spray painter, an occupation he followed until 1991. He resided with the testatrix and his father until he was 21. He married in 1966, but the union ended in divorce in 1991.

4. After that, he returned to live with the testatrix and his father. Then, in 1996, he went to Caloundra to look after his natural mother in her home after his stepfather died. Within a year or so, she went into a nursing home, following which he resided in her house for a period, rent free. In 1998, after she had gone into care, she transferred title in the house for a nominal sum to his half brother. Apparently, she rationalised doing so on the assumption that the applicant would inherit the testatrix’s house in due course. Before his half brother returned to live in the house in 2005, the applicant was permitted to continue living there, initially paying rent. After his half brother began to live there he paid half of the outgoings and expenses. The applicant’s natural mother died last year.

5. The applicant’s natural father died in September 1998. His half-share in the matrimonial home at Bulimba passed by survivorship to the testatrix. That property was sold to a developer, with the consideration being a unit in a new unit block on the neighbouring property together with a cash settlement of $50,000. The applicant deposes that the will of his natural father provided that if the testatrix were to predecease him, his property was to be distributed equally between the applicant and his brother. As events turned out, the applicant’s natural father predeceased the testatrix.

Relationship with Testatrix

6. According to the evidence, the applicant enjoyed a better relationship with his father than with the testatrix. He says that he got on well with his father. With regard to the testatrix, he said that through his teenage years, his relationship with her “wasn’t the best at all”. He attributed this to sudden acquisition of two teenage stepsons by a woman who had had no children of her own.

7. When the applicant married, in his mid-twenties in 1966, his father was invited to the wedding but not the testatrix. The applicant agreed with that course, which seems to have arisen from antipathy between the testatrix and the bride. It may be inferred that it was a hurtful incident, since the applicant’s father attended the wedding ceremony but not the reception. The applicant described the relationship with the testatrix in the couple of decades from when he was a young adult onwards as “always a bit rocky”, although it “got better as she grew older”. He described it as better than it had been in his teenage years. He attributed this to the fact that he was not living with them, only visiting, and that she and his father could “live their own life”.

8. In the period from the 1970s on, he characterised the relationship with the testatrix as one which “improved as time went on”. He suggested this was because they both had grown more mature. With regard to assistance given to the testatrix and his father, the evidence in paragraph 5 of the applicant’s affidavit of 15 November 2004 is essentially uncontradicted. As was highlighted by counsel for the respondent, the activities referred to all occurred before the applicant’s father’s death and many occurred many years ago. It was conceded in the same paragraph of the affidavit that the majority of time was spent exclusively meeting his father’s needs. However, some of what was done was clearly of benefit to the testatrix, even though, in many instances, his father’s incapacity was the catalyst.

9. The applicant estimated that after he moved to Caloundra in 1996, he visited the testatrix and his father about once a month. After his father died in September 1998, he assisted the testatrix for a brief period in clearing out his father’s room and attending to his father’s affairs. He was executor of his will. The evidence concerning the relationship between the testatrix and the applicant after that time suggests that it was distant on both sides. According to the applicant he had known, because the testatrix had told him, since about 2001 that he was not a beneficiary of her will. [The testatrix had made wills in February 2000 and March 2002 excluding him and his brother and making the same charitable dispositions as in the operative will]. He denied that this had contributed to the relationship not being close in the period that followed. He said that he visited her about every six weeks, although there were sometimes somewhat longer and sometimes shorter periods between visits depending on how she felt and how her health was. The system was that she would phone him and he would visit her. He said the longest period between visits after 1998 was four to five months.

10. He accepted that he last saw her in October 2003, about five months before her death. He said that this occurred because she had told him that she would phone if she needed him. He said that he had tried to phone her on some occasions but the phone had not been answered. He accepted that he knew that she may be in Greenslopes Hospital but made no inquiries there. There is no evidence that he tried to contact other sources who may have provided information about her wellbeing. It is therefore apparent that, at least, he did not persist in trying to get information about her welfare during this period. He did not become aware of her death until he was phoned by a friend of hers. He did not attend the funeral. He claimed that he had been frustrated in doing so by car trouble which meant that he could not make other arrangements in time. In a more general way, there is also evidence that he did not contact her at significant times such as birthdays and Christmas. He said the family “didn’t go in for birthdays”. In the context of not contacting her at Christmas 2003, when he knew she was ill and alone, he said:

“As I have said, she would have called me if she needed my assistance.  That’s how we left it at the time”.      

11. The chain of events suggests that a distant relationship which involved a minimum of contact suited both of them in this period. The evidence also suggests that the relationship between them was, mutually, never particularly warm or close. I am also satisfied that the acts of assistance to the testatrix were subsidiary or incidental to things done for his father, for the most part.

Principles to be applied

1. Two stage process             

12. As a stepchild, the applicant is within categories of persons who may apply for relief (s 40, s 40A Succession Act).  The question raised by s 41 of the Act is whether adequate provision was not made from the estate for the proper maintenance and support of the applicant.  Singer v Berghouse (1994) 181 CLR 201 confirmed that there is a two stage process involved in deciding whether the discretion given by s 41, to award provision out of the estate to be made for the applicant, should be exercised. 

13. The first stage involves considering whether the applicant has been left without adequate provision for his maintenance and his support. If that “jurisdictional question”, or “condition of power” as Gibbs J put it in Goodman v Windeyer (1980) 144 CLR 490, at 502, is answered favourably to the applicant, the second step is what provision, if any, should be made from the estate. 

14. The proper approach with respect to the first stage is expressed in a succinct way in the majority judgment in Singer at 209 – 210 in the following terms:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for [his or her] proper maintenance, education and advancement in life’?  The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between ‘adequate provision’ and ‘proper maintenance’ etc. were explained in Bosch v. Perpetual Trustee Co Ltd ([1938] A.C., at p.476).  The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all 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.”

15. With respect to the second stage, in Vigolo v Bostin [2005] HCA 11 Callinan and Heydon JJ said that “proper” implies something beyond mere dollars and cents.  Its use invites consideration of all surrounding circumstances.  They elaborated as follows:

“The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

16. Then they went on to say:

“‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live.  ‘Support’ similarly may imply provision beyond bare need.  The use of the two terms serves to amplify the powers conferred upon the court.”

17. Then at paragraph 122 they said:

“Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably.  Adequacy or otherwise will depend upon all of the relevant circumstances, ….  These matters however will never be conclusive.  The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all the other relevant factors.”

18. Gleeson CJ and Gummow and Hayne JJ adopted the latter part of the passage quoted above in paragraph [14] from the majority judgment in Singer.  Gummow and Hayne JJ also referred to a passage from Gibbs J’s judgment in Goodman at 502 where he said:

“[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.”

19. With respect to the second stage, the majority judgment in Singer says, at 210:

“The determination of the second stage, should it arise, involves similar considerations.  Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.  In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.”

20. At 211, it is said that, in determining the first step, although a value judgment must be made, the question whether adequate provision has not been made for proper maintenance and support of the applicant is a question of objective fact to be determined by the trial judge. By contrast, the decision at the second stage involves the exercise of a discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order, even though the jurisdictional question has been answered in the applicant’s favour.

2. Moral Duty / Moral Claim

21. The utility of the concepts of moral duty and moral claim has proved controversial. Vigolo is the latest discussion of the subject by the High Court.  Most discussions in the cases include reference to the following statement of principle by Salmond J in Allen (decd), In re; Allen v Manchester (1922) NZLR 218 at 220 – 221:

“The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it  his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.”  

22. In Singer at 209, Mason CJ, Deane and McHugh JJ said that they doubted that the statement provided useful assistance in elaborating the statutory provisions.  They said that references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language.  Toohey J and Gaudron J reached their separate conclusions without reference to the concept.

23. The subject was revisited in Vigolo where Gleeson CJ said that:

“21.In Singer v Berghouse, Mason CJ, Deane and McHugh JJ doubted that the statement of Salmond J provided useful assistance in elucidating the statutory provisions.  I do not share that doubt.  I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text.  Their Honours went on to describe references to ‘moral obligations’ as a gloss on the statutory text.  If, by that, they meant that such references are not to be used as a substitute for the text, I agree.  If they meant that such references are never of use as part of an exposition of legislative purpose, then I regret that I am unable to agree.’

…

25. In explaining the purpose of testator’s family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency.  It remains of value, and should not be discarded.  Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text.  They are useful as a guide to the meaning of the statute.  They are not meant to be a substitute for the text.  They connect the general but value-laden language of the statute to the community standards which give it practical meaning.  In some respects, those standards change and develop over time.  There is no reason to deny to them the description ‘moral’.  As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them.  Attempts to misapply judicial authority, whatever form they take, can be identified and resisted.  There is no occasion to reject the insights contained in such authority.”

24. Gummow and Hayne JJ said, in effect, that the evolution of legislation of this kind indicated the need for caution in a continued reiteration, as an aid to construction of modern legislation, of the moral duty owed by testators to their spouses and children. (That had been the focus of the statement of principle in Allen).  They concluded an extended discussion of the subject by saying:

“‘Moral duty’ may often have been used as a convenient shorthand expression intended to do no more than invite attention to the questions presented by the relevant legislation.  Its use, however, has led to reference being made to the ‘moral claims’ of those who seek further provision and this is n expression which is liable to being misunderstood just as its progenitor ‘moral duty’ may mislead.  It is therefore better to forgo any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language.  In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29, 46, Kirby P and Sheller JA correctly indicated that what was said in the joint judgment in Singer should henceforth provide an appropriate guide to the construction and operation of the family provision legislation.”

25. Callinan and Heydon JJ said:

“We would not be reluctant, at least in some cases, to use the expressions ‘moral duty’ and ‘moral obligation’, and to apply the concepts underlying them, which include the idea of ‘moral claims’.  It seems to us that there are several material indications in the Act that moral considerations may be relevant.  But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act.  Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant.”

26. They concluded by saying:

“121.For many years therefore several justices of this Court have found it convenient and generally useful to resort to the concepts of a moral duty and a moral claim in deciding both whether, and how much provision should be made to a claimant under the Act.  In our respectful opinion they have not been wrong to do so.  These are not concepts alien to, or in any way outside, the language of …. the Act.”

27. In view of the division of opinion on the issue and the uncertainty that a majority of all judges of the Court will favour one view or the other, I shall take the prudent course of not using the terminology relating to moral issues.

The “Jurisdictional Question”

28. The applicant presently receives a mature age allowance from Centrelink which he said in his oral evidence, was $440 per fortnight. He also gets small pharmaceutical and telephone allowances in addition to the basic mature age allowance. He also earned the average of $25 per fortnight mowing neighbours’ lawns, according to his oral evidence. In earlier documentation from Centrelink it appeared he was getting rental assistance of $85.63 but he says he is not getting it now. The reason was not explained but it may be accounted for by circumstances which will be discussed shortly.

29. He also inherited $40,000 from his natural mother which is currently in a term deposit at 5.2% per annum. He has a 1979 Datsun which was his mother’s. He has no mortgage, no car loan, and no credit card debts. He does not own a mobile phone. His recurring costs, in the form of his share of outgoings, food, recreational activities, car expenses, clothing and incidentals, leave no surplus from his income.

30. The share of outgoings just referred to is paid to his half brother with whom he lives in the house at Caloundra. Since his half brother returned to live in it in 2005 the applicant has paid half the outgoings. When the applicant was living alone in the house from 1998 until his half brother’s return, he paid $100 per week rent. Presumably the rental allowance ceased when the new arrangement was implemented between him and his half brother on the latter’s return. In the period from 1996 to 1998, prior to the transfer of the house to the applicant’s half brother by their mother, he lived there rent free.

31. The applicant’s history prior to that period has been touched on previously. By way of further background, his father and the testatrix had worked as a tram driver and tram conductress. As was the case in those days, she could not continue that employment after they married because she was subject to the policy of governments and instrumentalities that married women were not to be employed. She then worked as a barmaid until she was in her mid-sixties. While the applicant was part of the household in the early period before he left home, they lived frugally in what he accepted was a modest home at Bulimba which he agreed was then “very much” a “working class suburb”.

32. He was employed as a spray painter from an early age until 1991. For the last twenty years or so he had worked for one employer. He left that job in 1991, the year of his divorce, for unspecified health reasons. He and his wife also ran an indoor plant hire business. When their affairs were settled after the divorce, he obtained $53,000 as his share. He subsequently worked for about 10 months as an employed house painter earning $300 per week by way of cash payment. Later he mowed lawns for neighbours for $12.50, on average one per week.

33. From the $53,000 he bought a caravan in 1991 for about $3,000 and a car for $1,600. He sold both in about 1998 for about $1,000 and $700 respectively. As to the rest of the $53,000, he said he spent the rest on “just expenses and over the years”. He said that he had made enquiries about partly funding the purchase of a house with the money but had had an application for a loan refused because he was not employed at the time.

34. The applicant agreed with the respondent’s counsel that after his marriage ended, he chose to live at Bulimba rather than with his mother at Caloundra because he could park his caravan in the yard at Bulimba. He paid $50 per week board from 1991 to 1996 which covered his accommodation, in the sense that he was allowed to park the caravan there, food, electricity and use of the phone and laundry facilities.

35. The pattern of the applicant’s life shows steady employment until he was in his fifties, in what, at the time, would have been described as blue collar occupations. Although the subject was not extensively explored in evidence, he seems to have been comfortable with his lifestyle in the period before the 1990s. After his divorce he worked full time for less than a year and seems to have been content to live in the modest circumstances described above after that. The proceeds of the divorce settlement may have been used when he was essentially unemployed. He did not give me the impression that he was uncomfortable with that lifestyle. Notwithstanding the evidence that he left his employment in 1991 because of ill health, there is no evidence of continuing or subsequent ill health. However, it is common experience that as a person’s age increases, the risks of illness will almost certainly increase too. The applicant is approaching an age where he will be regarded, by some at least, as elderly.

36. As part of his lifestyle since 1991, he has lived with others, paying relatively small amounts by way of rent or a contribution towards expenses. At present, he lives in the house at Caloundra formerly owned by his natural mother and now owned by his half brother who is 54 and has never married. The applicant says the arrangement with his half brother is that he can live in the house for as long as he owns it. The last observation led counsel for the respondent to open up the question whether the half brother had any intention to sell the property. The applicant responded, in an answer that was hearsay in form, that his half brother had told him he was thinking of selling.

37. Further cross-examination elicited that his half brother worked in Brisbane and came home only at weekends and could not retire until he was 60. However, the applicant conceded that the house was not on the market and that it had been years since a real estate agent had evaluated it. He was also asked about the possibility of moving to Brisbane to live in similar circumstances if his half brother sold the Caloundra house and bought in Brisbane. The applicant said he did not like Brisbane and would not go there if that happened.

38. Apart from the hearsay evidence, it was established in cross-examination that the land upon which the house stands, but not apparently the house itself, is now valuable. It is two blocks from the beach and not far from a canal development.

39. Neither party submitted that any regard should be had to the possibility that the applicant might benefit from the house acquired by his half brother in the event of his half brother predeceasing him. Since his half brother is about ten years younger than him, according to the evidence, the possibility would have to be appreciably discounted in the ordinary course of events.

40. The final matter is of some significance. It concerns what may be done in the case of a stepchild whose natural parent predeceased the step-parent and his interest in assets accumulated during the marriage passes to the step-parent, and the
    step-parent makes inadequate provision for the stepchild in his or her will.  In the present case, the natural parent’s death resulted in his joint interest in real property that was his major asset passing to the applicant’s stepmother by survivorship.  That real property was subsequently sold but was replaced contemporaneously with other real property.  Neither of those factors in my view should be a critical distinguishing feature from cases where the devolution of property to the step-parent arises from a testamentary instrument (cf James v Day [2004] VSC 290).

41. Cases can be found where this kind of situation has led to an order in favour of a stepchild (McKenzie v Topp [2004] VSC 90;  James v Day;  Keets v Marks [2005] VSC 172;  Freeman v Jacques [2005] QSC 200;  [2005] QCA 423).  Since orders were made in favour of some applicants in Freeman v Jacques and refused in respect of others, the principle was not challenged in the Court of Appeal by the appellants who were unsuccessful applicants.  However, Keane JA noted that McKenzie v Topp and James v Day were cases where claims were made against the estate of a deceased step-parent where the whole of the estate of the natural parent had earlier been left to the step-parent.  He continued:

“… They were cases where the stepchild had received nothing from the estate of the natural parent.  In those circumstances, one may more readily conclude that a wise and just step-parent would recognise a moral claim in a stepchild to maintenance or support from an estate which was derived, in whole or in part, from the stepchild’s natural parent.”

42. In the Trial Division Mullins J said:

“The ordinary principles that apply for determining the jurisdictional issue of any applicant are the starting point for determining the jurisdictional issue in relation to a claim for family provision by a stepchild against the estate of a stepparent.  The circumstances of the step relationship itself may affect the application of these principles, for example, the degree of dependence of the stepchild on the stepparent may be affected by the living arrangements for the stepchild or when the relationship commenced.  An additional matter that may be relevant in determining the jurisdictional issue in the step relationship situation, by virtue of that relationship, is whether the stepparent’s assets have been derived in part from the funds or resources of the natural parent of the stepchild.”

She referred to Re Callaghan, deceased (1984) 3 All ER 790;  Re Fulop (1987) 8 NSWLR 679 and McKenzie v Topp at para 60 as authority for the last sentence.

43. There is tension in this case between that principle which in my view has some weight, and the distant nature of the relationship between the testatrix and the applicant over the years, but particularly in the years after the death of the applicant’s father. The testatrix had clearly formed her impression that the applicant was not worthy of benefiting under her will and had made him aware that he was not a beneficiary. Her reasons for taking such an attitude towards the applicant should not be lightly disregarded. So far as his relationship with her alone was concerned, there was a degree of justification in holding that view. However, there is uncontradicted evidence that, over the years, the applicant did perform acts of benefit to the testatrix as well as to his father and in the period of his father’s illness, things that may have been prompted by his illness but which undoubtedly benefited her. There is therefore an element of overstatement in the testator’s expressed reasons, while it may be accepted that the relationship was mutually cool.

44. At the time of the testatrix’s death the applicant was living under an arrangement undoubtedly beneficial to him, with his half brother. The arrangement was dependant on the half brother continuing to own the house and on willingness on both sides to continue the arrangement. There was a foreseeable risk that the applicant might be thrown on to the commercial rental market as a person of limited means.

45. Since 1991 the applicant has lived a modest but apparently comfortable lifestyle, partly due to the minimal expenditure he has had to make by reason of inter-family generosity and, most likely, partly due to the proceeds of his divorce settlement. His current assets consist of $40,000 derived from his natural mother’s estate which at current interest rates on term deposit returns about $40 per week and a motor vehicle of little value. He obtains a Centrelink mature age allowance and it may be inferred that rental assistance would also be payable if the criteria for such an allowance existed in future. The factor that the estate essentially comprised the proceeds of a sale of a unit bought in substitution for a house, a half share in which she acquired in consequence of the death of the applicant’s father should also be taken into account. It should also be noted that, apart from a personal friend who received furniture and personal effects, the beneficiaries are charities as to which there is no dispute concerning their worthiness, but as to which there is no evidence that they played any special part in her life.

46. In today’s economic conditions, the estate is a moderate one. The applicant has cash reserves that he appears not to be drawing on at present but which will probably be eroded if his current favourable living arrangement ceases and he has to find accommodation at commercial rates. In my view, in the context of the evidence, he should at least be given a buffer against that eventuality. Having weighed the competing considerations referred to in the extracts from the cases above, particularly the derivation of part of the estate from his father’s share in the original house, I conclude that the applicant was left without adequate provision for his maintenance and support.

Exercise of Discretion

47. I now proceed to exercise the discretion required in the second step in the process. In my view, the case is not one where it would be proper to refuse the application entirely. The fact is that, notwithstanding the generally cool relationship between the applicant and the testatrix, he was prepared, at least while his father was alive, to do things which were of benefit to the testatrix even if looking after his father was the predominant motive. According to his evidence, she discouraged him from initiating assistance in the years after his father’s death. Equally, I am satisfied that he was not inclined to take proactive steps to assist her in that period or to initiate contact to try to ascertain her wellbeing or otherwise. The reality of the relationship was, in my view, that after his father died he was largely indifferent to these issues.

48. The applicant relied on several cases which were submitted to have similar characteristics to the present case. The contention was that, having regard to the cases that were said to be comparable, an amount in the vicinity of 60 per cent of the predicted net value of the estate should be awarded to the applicant. Particular emphasis was placed on Day v Bennett [2004] NSWSC 994 which, it was submitted, had striking similarities to the present case.  The testator was the stepfather of the applicant.  The net estate was valued at about $450,000.  The applicant had maintained contact with and rendered assistance to the testator and his mother until, at a time when they had separated and his mother was in a nursing home, the applicant and his stepfather fell out because the applicant sided with other family members who brought Family Court proceedings to obtain money from the stepfather to assist with the mother’s nursing home expenses.  When she died the applicant did not tell his stepfather. 

49. The beneficiaries of the stepfather’s will were relatives of his. Although the applicant was earning $70,000 net per annum, he had no surplus after expenses and his net asset worth was about $10,000. He had a degenerative disease, both traumatic and congenital, in his knees and there was a possibility that knee replacements would have to be done. He also had a commitment under an arrangement with a friend to pay the majority of repayments on a mortgage over a property which they owned together and in which he lived. The matter was resolved on the basis of allowing him an amount to pay his share of the mortgage and some other debts. This would have the effect of releasing about $150 per week otherwise committed to repaying them for living expenses. The sum of $140,000 represented about 31 per cent of the estate.

50. Of the other cases relied on by the applicant Re Estate of Edwards; Edwards v Terry [2002] NSWSC 835 was one where the relationship between the applicant and his parents had been generally maintained although his father was apparently frustrated with the failure of the applicant, who had ADHD, to live up to his expectations.  After a stroke, the applicant assaulted his mother and father which ruptured the relationship.  He never saw his father again.  When he re-established contact with his mother she was suffering dementia.  He showed affection to her and tried to care for her through her illness. 

51. He was on a disability pension, had no savings, and lived in rental accommodation. He had been left 15 per cent of an estate of about $63,500 net. The sum awarded was $45,000. In my view the relationship and the personal circumstances were more deserving than in the present case.

52. Agcaoglyu v Public Trustee [2005] NSWSC 26 involved a net estate of $238,000.  There were three applicants in a case where significant legacies had been left to a man who had lived rent free in the testatrix’s house for 13 years and had been a paid carer for about eight of these, and to a friend of five years standing.  The Master who heard the matter formed an adverse view of the carer’s credibility.  The testatrix had alleged, contrary to evidence accepted by the Master, that the family members had “ripped her off”.  All of the applicants had maintained contact with the testatrix, in one case, in the face of the carer’s attempts to block her from doing so.  Two of the applicants had health problems and the other had children with disabilities to look after.  All were in poor financial states.  Each was awarded $40,000, the combined sum of $120,000 being sourced from the legacies to the carer and the friend.  Each of the applicants was in a more advantageous position than the present applicant. 

53. Re Estate of Little; Little v Morton [2005] NSWSC 36 involved an estate of about $1,000,000.  One applicant had about $22,000 in assets apart from a home which was so dilapidated that it was cheaper to demolish it and rebuild than to repair.  She was a pensioner and had chronic fatigue syndrome.  The cost of a new house was in the range of $150,000 - $175,000.  The second had assets valued at about $800,000 but was asset-rich and cash-poor.  She was an artist with an income predicted at about $17,000 per annum which was less than her living expenses.  She was not entitled to a pension.  She had diabetes, asthma and allergies.  She was also to have a cornea transplant in the near future.  Each applicant had a good relationship with the testatrix. 

54. It was observed that the value of the estate after payment of costs and legacies and bequests to two sons of the deceased, almost $700,000, was a substantial amount which the deceased had available to her to provide for her two daughters and indulge her own wish to benefit a charity which she considered worthy but had no known connection with her. As is not uncommon in cases of large estates,
    (Bosch at 478), the opportunity to provide against contingencies played a part in the outcome.  The first applicant was awarded $350,000 to meet financial needs and as a buffer against contingencies.  The asset-rich and cash-poor second applicant was awarded $100,000 to supplement her income and allow for concerns over losing her sight in the future. 

55. Being a case of a relatively large estate, the issue of what was “proper” probably assumed more prominence. All of those cases were also decided under the different wording of the New South Wales legislation.

56. What is appropriate in a particular case is largely based on perceptions. It is not an area where mathematical certainty can be applied. What has been done in other cases with different facts only provides an insight into how the questions that had to be asked were answered on the facts of those cases. None of the cases above are directly comparable so far as the nature of the relationship is concerned. In this case, being realistic, the relationship was never cordial, unlike the relationships in Day v Bennett and Edwards v Terry, where after a period of relative normality, a particular event late in the relationship caused a serious rift.  In this case the relationship was never close and in the last few years, the applicant accepted the situation where he did not have to actively seek to help the testatrix.  Such help as he rendered was infrequent.  At the end, his attitude bordered on indifference. 

57. Applying the concept developed in the cases referred to in paragraph [41] above, it should be taken into account that the substance of the estate was derived from the sale of real property bought in substitution for a house, a half share in which passed from the applicant’s father to the testatrix. However, given the longstanding nature of the relationship between the testatrix and the applicant, the case is one where there should be a significant discount from what might otherwise have been awarded. Without intending to make any generally applicable statement of principle, I am not persuaded, in principle, in the circumstances of the present case, that the testatrix’s bounty was obliged to extend beyond that portion of the whole value of the house that was derivative from the applicant’s father. Allowing for this and the appropriateness of a significant discount, I consider that payment of a sum of $40,000 is appropriate in the circumstances of the case. The specific bequest is not affected by the payment to the applicant. Insofar as division of the residue is concerned the share to each beneficiary after deduction of the $40,000 remains as provided for in the will.

Orders

1. That further provision be made for the proper maintenance and support of Wayne Raymond Powell out of the estate of Eileen Margaret Powell by payment of a lump sum of $40,000.

2. Leave is given for the parties to make written submissions with regard to costs within seven days of delivery of these reasons.