Houston v Butler[2007] QSC 284

SUPREME COURT OF QUEENSLAND

The Application

[1] This is an application by the applicant pursuant to s 41(1) of the Succession Act 1981 (Qld) (“the Succession Act”). The applicant claims that adequate provision for her proper maintenance and support was not made for her under the testator’s will. 

[2] The applicant makes this application on the basis that she was the testator’s de facto spouse from 1987 until the date of his death in 2005.

[3] The respondents acknowledge the existence of some relationship between the testator and the applicant but deny that the relationship existed for as long as the applicant claims or that the relationship was one which would make the applicant the de facto spouse of the testator in the eyes of the law.

Background

[4] Frank William Butler (“the testator”) died on 23 January 2005 at the age of 78.

[5] The testator was survived by 4 children; 2 sons, Craig Butler aged 49 and Brian Butler aged 46; and 2 daughters, Kerryn Philips aged 41 and Lori-Ann Butler aged 40.

[6] The testator left an estate valued at $1,796,663.80 at the time of death and $1,730,861.50 at trial after deducting approximately $96,000 for the executors costs of this litigation.

[7] The bulk of the estate is comprised of 5 parcels of land, Lot 401 on CP DT 4026 (“Lot 401”), Lot 44 on CP DS 290 (“Lot 44”), Lot 402 on RP 882730 (“Lot 402”), Lot 30 on RP 801113 (Lot 30) and Lot 7 on CP DS 836845 (“Lot 7”).  This land is all in the Yarwun area near Gladstone.

[8] Despite the buoyant property market elsewhere in the region, the value of the land has not materially increased in the 2 years since the testator died.  The reason for this is that the land is affected by the shale oil project which has limited the market for some years.  It will be necessary to return to this when looking at the valuation evidence later.

[9] Under his last will dated 25 July 2000, the testator left Lot 7 to the applicant, Lot 44 to his daughters up to a value of $176,500 and thereafter to all 4 children equally, Lot 401 to his sons up to a value of $320,000 and thereafter to all 4 children and the applicant equally, and the remaining land to his sons.  The applicant was left a legacy of $30,000 and the residual estate was divided equally between the children.

The issues

[10] The first issue in dispute in these proceedings is whether the applicant was the testator’s spouse for the purposes of the Succession Act.

[11] In the event that the applicant is successful in establishing her status as the testator’s de facto spouse, the respondents concede that the applicant was inadequately provided for under testator’s will. In which case, the second issue is what provision should have been made for the applicant from the testator’s estate.

The Relevant Law

[12] The application is made pursuant to s 41(1) of the Succession Act 1981 which relevantly provides:

“41 Estate of testator person liable for maintenance

(1) If any person (the testator person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the testator person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the testator person for such spouse, child or dependant”

[13] To determine the first issue, it is relevant to turn to s 5AA of the Succession Act. This section defines a spouse so as to include a testator’s de facto partner as defined in s 32DA of the Acts Interpretation Act 1954 (Qld) (“Acts Interpretation Act”). In short, a de facto relationship will exist where a couple have lived together on a genuine domestic basis for a continuous period of at least 2 years ending with the testator’s death.

[14] Section 32DA of the Acts Interpretation Act relevantly provides:

“32DA Meaning of de facto partner

(1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—

(a) the nature and extent of their common residence;

(b) the length of their relationship;

(c) whether or not a sexual relationship exists or existed;

(d) the degree of financial dependence or interdependence, and any arrangement for financial support;

(e) their ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life, including the care and support of each other;

(g) the care and support of children;

(h) the performance of household tasks;

(i) the reputation and public aspects of their relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.”

[15] If it is established that the applicant is the testator’s spouse for the purposes of the claim, determination of the second issue, that is the applicant’s entitlement to further provision out of the estate, depends upon the application of the two-fold test enunciated by the majority of the High Court in Singer v Berghouse (1994) 181 CLR 201 where at pages 209 – 210 the following passages appear:

“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 between ‘adequate provision’ and ‘proper maintenance’ etc. were explained in Bosch v Perpetual Trustee Co Ltd  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 the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the testator’s estate, the totality of the relationship between the testator and other persons who have legitimate claims upon his or her bounty.

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.”

Was the applicant a de facto spouse?

[16] I note in passing that on the evidence, neither the testator nor the applicant was comfortable with the use of the expression “de facto” to describe any relationship they might have been in.  This seems to be mainly a consequence of the nuances inherent in the term for some people of their generation and background.  Accordingly I did not find their failure to describe their relationship as de facto spouses as helpful to either side.  I also detected in the evidence a reticence on the part of the applicant and the testator to advertise the sexual nature of their relationship despite it being known within the testator’s family.

[17] For the purposes of determining the status of the relationship, I was impressed by the evidence of Mrs Michelle Butler and Mrs Janine Butler, the respective wives of the respondents. They appeared to me to be both honest and reliable. Neither of those witnesses appeared to me to have any animus towards the applicant. I accept their evidence as far as it relates to factual matters even though I do not necessarily agree with all of their assumptions and conclusions.

[18] I was also impressed by the evidence of Mrs Hazel Paul for similar reasons.

[19] The factors listed in s 32 DA (2) (a) – (i) of the Acts Interpretation Act are central to determining whether the applicant and the testator were in a de facto relationship. I will now consider the evidence as it relates to these factors so to make findings in relation to the nature of the relationship.

The nature and extent of their common residence

[20] Some facts were agreed between the parties.

[21] Throughout the relevant period the testator lived at 478 Targinnie Road.  The street numbers correspond with the distance from the commencement of the road.  478 is 4.78 kilometres from the commencement of Targinnie Road.

[22] From 1987 until mid 1992 the applicant lived at a property at Forest Road, Targinnie which apparently backed onto part of the testator’s property.  From about mid 1992 she occupied a property she had purchased at 602 Targinnie Road from which she carried on business as a Cadastral Draftsperson and conducted her activities as a regional Girl Guide leader.  I have referred to the applicant occupying that property because one of the subsidiary issues in the case is whether she actually lived there or merely carried on business there.

[23] In 2001 the testator suffered a major stroke.  When he returned home from hospital it is common ground that the applicant lived with the testator full time and cared for him until he died in 2005.

[24] It seemed to be conceded by the applicant that unless the applicant was living with the testator in a de facto relationship prior to his suffering his stroke in 2001 the application must fail notwithstanding that she lived with and cared for him after that time for more than the required 2 years terminating on death.

[25] It is also common ground that throughout the relevant period the applicant kept her pets at the Forest Road or 602 Targinnie Road premises and fed them there.  According to her evidence, the applicant left the testator’s residence each morning to attend work at 602 Targinnie Road and returned for lunch.  She would then go back to 602 Targinnie Road for the afternoon and return in the evening. After she commenced occupying 602 Targinnie Road that address became and remained the applicant’s mailing address until the testator suffered his stroke.

[26] For a period of eighteen months or a little longer, Mrs Paul cleaned for the testator.  Despite what she says in her affidavit, it was clear from her oral evidence that the period this covered commenced some time in 1990 and finished in 1992 or perhaps a little earlier.

[27] The period Mrs Paul cleaned for the testator covered the last 18 months or so of the time the applicant lived at Forest Road.  The impression gained by Mrs Paul during her period as cleaner was that the testator lived alone.

[28] On occasion Mrs Paul also cleaned for the applicant.  She gave evidence that she formed the impression that the applicant lived in her own residence.  This was largely based on the unmade bed and a number of day’s dishes and cutlery in the sink.  Under cross examination Mrs Paul conceded that the dishes may have related to the feeding of the cats and dog and that the cutlery may have been used to serve the pet food.  This had not been a possibility that she had previously considered..

[29] Mrs Michelle Butler is married to Craig Butler.  She and her family moved from Moranbah where Craig Butler worked in the mines to Gladstone in 1987.  In 1989 she and her family moved to Targinnie, near to her father-in-law.

[30] Mrs Michelle Butler did not believe the applicant was living with the testator prior to his stroke.  She based this conclusion on the fact that nothing had changed in the testator’s house from the time of his divorce from his first wife.  The house had the same furniture, the same curtains, the same crockery and the same carpet. The testator’s house was, in some respects, primitive.  It had only a bath but no shower and no hot water. She only ever observed men’s clothing on the clothes line.  The applicant responded to this last observation by saying that she did her washing, the linen and the testator’s better clothes at her house at 602 Targinnie Road on Sundays. The testator washed his work clothes himself.

[31] After the testator commenced to live in the house as the testator’s carer, Mrs Butler noticed more toiletries, cleaning products in the bathroom, more than one towel or toothbrush in the bathroom and some rearrangement of the furniture and household items in ways not  related to the testator’s disabilities.

[32] Mrs Michelle Butler telephoned the applicant at 602 Targinnie Road on a number of occasions in the afternoon over a number of years. Often, the applicant would remark that she had been in the bath or shower when the phone rang.

[33] In contrast, Mrs Beverley Lynette Merrett, a friend of the applicant’s through Girl Guides, gave evidence that her point of contact with the applicant in the evening was at the testator’s residence. 

[34] Mrs Jeannine Butler is married to Mr Brian Butler.

[35] Mrs Jeannine Butler and her family moved to Gladstone in about 1988. 

[36] Up until 2001, Mrs Jeannine Butler was not aware of anyone other than her father-in-law living in the house.  There were no obvious signs of a woman living in the house.  There were no women’s toiletries on display, only one towel in the bathroom and no evidence of “comforts”.  It was the presence of these things after 2001 which Mrs Jeannine Butler regarded as demonstrating that there had been a change in the occupancy of the premises.

[37] The applicant was sleeping with the testator on the night he suffered his stroke. She telephoned the ambulance and his children and accompanied him to the hospital.

The length of their relationship

[38] The applicant contends that her relationship with the testator commenced in 1987 and continued to the date of his death.

[39] In evidence, Mrs Michelle Butler stated that she first became aware of the applicant in about 1990.  She regarded the applicant as her father-in-law’s girlfriend.  Mrs Butler visited her father-in-law informally about once a fortnight. She saw the applicant at her father-in-law’s house regularly.

[40] Mrs Jeannine Butler gave similar evidence that she became aware of the applicant whom she regarded as her father-in-law’s “lady friend” in about 1990.

Whether or not a sexual relationship existed

[41] It is also common ground that the applicant and the testator enjoyed an exclusive sexual relationship over a long period before the testator suffered his stroke.

The degree of financial dependence or interdependence, and any arrangement for financial support

[42] The applicant did most of the shopping both for herself and the testator and for this purpose the testator maintained an account to which the applicant had access.  The applicant purchased some items for the testator, some for herself and some were for the two of them jointly.  For her own items, the applicant paid from her private means.  These items included pet food.  The testator appeared to have had no interest in the applicant’s animals which were kept away from the testator’s house.

[43] Apart from this, the applicant and the testator kept their financial affairs completely separate. Both had previously been married and seemed to have regarded the maintenance of financial independence as important.

The ownership, use and acquisition of property

[44] The applicant and the testator owned their properties separately and did not acquire any joint property.

[45] The applicant took no active role in the farming operations conducted on the testator’s property.

The degree of mutual commitment to a shared life, including the care and support of each other

[46] One event of significance which appears to have coloured the children’s attitude to the relationship between the testator and the applicant was a conversation between the testator and his son the date of which is unclear but which appears to have been early in the relationship.

[47] Mr Brian Butler deposes in his first affidavit that he raised concerns with his father about the possibility of the applicant acquiring an interest in his property.  Mr Brian Butler’s concern arose from the fact that he and his brother Craig were in partnership with their father in a mango and cattle business operated from their father’s land and into which the brothers were investing a significant amount of time, effort and money.  It is clear from the evidence that the interest which was of concern was an interest under Part 19 of the Property Law Act 1974.

[48] The testator is reported to have responded that the applicant did not have any interest in the property and whatever his sons put into the property would remain theirs.  The testator also told his son that he did not recognise the applicant as his partner or de facto, that he did not want the applicant to move in with him and had told her so.

[49] This conversation took place in a context in which the testator had been involved in a bitter divorce and property settlement with his first wife during the 1980’s.

[50] Following the testator’s stroke in 2001, the applicant abandoned her own business and thereby surrendered her valued independence.  She stayed with the testator during his extended stay in hospital and rehabilitation and when he was able to return home after months, she remained with him as his full time carer while continuing to share his bed. 

[51] It was suggested in evidence that the testator had not wanted the applicant to live with him full time after returning from hospital following his stroke.  I do not accept this.

[52] There was no evidence that the testator, although severely disabled was so cognitively impaired as to be unable to hold a view on this topic or that he was incapable of communicating that view.  I have no doubt that if the testator was opposed to the constant presence of the applicant in his house his family would not have permitted her to stay or to share his bed.  I was not given the impression that they would have been capable of such cruelty to an aged and disabled father.  Both the respondents seemed to me to have been both fond and supportive of their father and would have done their best to make him as happy as possible.

The care and support of children

[53] Because of their respective ages, children did not ever feature in the relationship. Apart from some social events at the testator’s house, the applicant seems to have avoided family events. Her stated reason was that she did not want to cause embarrassment at functions at which the testator’s former wife was also present. The testator sent separate Christmas cards to his children. 

The performance of household tasks

[54] The applicant gave evidence that she undertook some level of housework for the testator. However, it seems clear from the whole of the evidence that the applicant was not overly fussy about housework and was content to live a relatively rustic existence. Household tasks did not form a substantial feature of the relationship.

The reputation and public aspects of their relationship

[55] Friends of the applicant gave evidence that the applicant and the testator were seen together attending events and gathering. These were mostly the applicant’s girl guiding activities and local community events.

[56] Mrs Michelle Butler gave evidence that on occasions the testator would hold more formal family gatherings.  The two daughters-in-law would generally provide the tea and the food.  The applicant would normally arrive at the testator’s house after they did and would remain after they left.  On occasions, particularly during the mango season, Mrs Butler saw the testator at the applicant’s property helping with the fruit.

[57] In this respect, the respondents also relied on an affidavit from a Mr Creed who had served on the Calliope Shire Council with the testator from 1976 until 1991.  Although Mr Creed does not identify the period of his association with the testator that is covered by his affidavit, it appears from the content of the document to relate primarily to the period they served together on the council.  This period ended in 1991.

[58] Because it was so early in the period at which I find the relationship commenced, Mr Creed’s evidence is of limited use in relation to the questions I have to decide.  It should be observed that Mr Creed was not aware that the relationship between the applicant and the testator was a sexual one.

Conclusions

[59] Despite the observations by witnesses whose evidence I accept, the conclusions I draw from the whole of the evidence are as follows.

[60] The relationship between the applicant and the testator commenced somewhere between 1987 being the date that the applicant puts on the commencement of the relationship and 1990 when the testator’s family became aware of it.

[61] Based on Mrs Merrett’s evidence that her point of contact with the applicant of a night time was at the testator’s home, I conclude that from at least 1990, the applicant shared the testator’s bedroom frequently, even if not every night.  On the night the testator suffered his stroke, the applicant was obviously staying the night.  I have also had regard to the evidence that the applicant appears to have stayed following family functions at the testator’s house after the other family members had left.

[62] Mrs Michelle Butler gave evidence that the applicant said on several occasions that she had the best of both worlds in the sense that if the testator was difficult to get on with she could just go home and that she would not marry him for this reason.  I do not infer from this that the applicant was not sleeping at the testator’s house but rather, that she had a place to go if there were any difficulties in the relationship.  It would be an odd comment for the applicant to have made if she was not staying with the testator most of the time.

[63] On the other hand, the applicant left the testator’s residence relatively early each day and returned to her own house. Having regard to the evidence of Mrs Michelle Butler, I find that on the balance of probabilities, the applicant showered and dressed for the day at her own house although this may have been because of the primitive facilities at the testator’s house. This would account for the lack of obvious women’s toiletries and apparel at the testator’s house and for some of the other lack of indicia of occupation.

[64] The applicant and the testator kept many areas of their lives separate. Apart from the separate mailing addresses, to which I have already referred, the applicant’s address on the electoral roll was at 602 Targinnie Road.  The applicant kept her furniture and most of her personal possessions at her own house.  In her evidence, the applicant said that she kept some toiletries in the drawer in the bedside table and some clothes in the spare bedroom cupboard.  I have no reason to doubt that this was so.

[65] The applicant and the testator kept their financial affairs separate. The applicant and the testator had a limited social life but appeared to attend a number of functions as a couple.

[66] There was some debate in the evidence about the respective performance of household tasks.  As I have already indicated, domestic chores did not feature heavily in the relationship. 

[67] The applicant and the testator shared a private and sexual relationship of an evening which from its duration appears to have been enjoyed by both.

[68] In my view a critical feature in this case is the degree of mutual commitment to a shared life, including the care and support of each other.

[69] Despite the concession that the existence of a de facto relationship cannot be inferred from the fact that the applicant was the testator’s live in carer for the last four years of his life, the applicant’s adoption of that role is not irrelevant.  The applicant’s response to the testator’s incapacity is evidence of the quality of the relationship which existed at the time of and preceding the testator’s stroke.  Whatever some of the outward signs of independence the testator or the applicant might have wanted to portray to the family, the applicant’s response demonstrates that such independence as the applicant and the testator maintained was superficial in the sense that it was immediately set aside when it became inconsistent with the needs of the relationship. 

[70] It is of the nature of many de facto relationships that they develop over a period of time and a precise moment crosses the line to become one recognised by the legislation is often difficult to discern.

[71] However, I am satisfied the evidence establishes a relationship between the applicant and the testator which clearly went beyond dating, socialising and periodic sexual encounters. This is exemplified by her willingness to give up her own career and financial independence when the relationship demanded it. The quality of the relationship was one which saw the private lifestyle desires of each party being conditional on the needs of the other partner. 

[72] Having regard to the matters to which I have referred, I am satisfied that, pursuant to s 32DA of the Acts Interpretation Act, for a lengthy albeit uncertain period prior to 2001, the testator and the applicant lived together on a genuine domestic basis to the extent that the applicant can be properly regarded as the testator’s spouse for the purposes of the Succession Act.

[73] While I would not conclude that the relationship was of the required character from as early as 1987, I do find that it was of that character from some time in early 1990’s.

[74] Having regard to my finding in relation to the status of the applicant and to the concession by the respondents that adequate provision had not been made for the proper maintenance and support of the applicant, it remains only to consider what provision should have been made.

[75] The first step in this process is to determine the value of what has been left to the applicant under the will.

The valuation evidence

[76] There was a dispute between the parties in relation to the value of individual properties, although somewhat surprisingly, the valuers called by the respective parties reached similar conclusions as to the overall value of the properties.

[77] As I have indicated above, the critical feature of these properties is that they are within the areas subject to shale oil leases or within the State Development Area.

[78] A pilot plant for the production of oil from shale was commissioned some years ago.  The plant resulted in heavy pollution of the affected area.  As a result of that the land in the affected area became virtually unsaleable.  Landowners in the Targinnie Valley petitioned the State government to declare the affected land a State Development Area and purchase the land from those landowners wishing to dispose of their properties.  The government agreed to the residents’ request in relation to land not subject to the mining leases.  This is not a compulsory acquisition scheme which was the basis on which the applicant presented her case.  Rather it provided an opportunity for landowners to obtain a proper value for their properties despite the particular adverse features affecting those properties.

[79] As a result of these historical events there is an artificial market for land in the State Development Area where there might otherwise have been no market at all.

[80] Of the valuers called, Mr Craig for the applicant applied conventional valuation principles to the land and based his estimates on arms length sales to non government purchasers.  Mr Craig excluded sales to the government within the State Development Area because he wrongly believed that they were compulsory acquisitions and therefore not arms length sales.  Because of the dearth of sales in the immediate area, the comparable sales selected were mainly in different parts of the Gladstone region.  Because of the special factors affecting this particular land, I am not persuaded that conventional valuation techniques truly reflect the price at which the testator’s land can be disposed of.

[81] Mr Sheehan for the respondent had the advantage of having been directly involved in negotiating many of the sales in the State Development Area.  He applied his personal knowledge of what the government was prepared to pay for the land in the State Development Area and the basis on which the price was calculated.

[82] As a result of his specific knowledge of the special features of this land I prefer his evidence to that of Mr Craig.

[83] On this basis, Lot 401 is worth between $135,000 and $160,000.  Lot 44 is worth $210,000 to $230,000.  Lot 402 is worth between $550,000 and $600,000.  Lot 7 is worth between $130,000 and $140,000 and Lot 30 is worth $565,000.

[84] It is common ground that whatever the outcome of this application the land will be sold.  The beneficiaries have not expressed any wish to retain any part of the testator’s real estate.

[85] Applying Mr Sheehan’s values to the provisions in the will to which I have earlier referred, the applicant was left a legacy of $30,000, $135,000 being the median value of Lot 7 and nothing from Lot 401, making a total of $165,000.

What provision should have been made for the applicant from the testator’s estate

[86] Because it has been agreed that the provision for the applicant was inadequate if she was found to be a spouse, I will move directly to the second stage of the process identified in Singer v Berghouse.

[87] As required by s 41(1) of the Succession Act, any provision made for the applicant out of the testator’s estate must be adequate for her proper maintenance and support.

[88] To properly determine what provision should have been made for the applicant from the testator’s estate, I must engage in a consideration of all surrounding and relevant circumstances: see Powell v. Monteath [2006] QSC 24 at paragraph [12] - [20].

[89] The position of the applicant as at the date of death was that she owned her own residence at 602 Targinnie Road.  She had previously conducted a successful business as a cadastral draftsperson but had given up that business to care for the testator.  She was thus in a position where she may or may not have been able to revive that business but had no short term means of financial support.  She was 58 years of age, having been born on 16 January 1947.  Apart from the last 4 years, she had been financially independent throughout the relationship with the testator.  There is no evidence that she was not fit and able to return to work.

[90] The testator’s two sons were both independent. They were both of reasonable means but neither was wealthy. They had contributed a great deal of time and effort and provided support to their father in his later years.  The testator expressed a clear desire to particularly benefit them under his will. Under the will and applying the figures supplied at trial, each son would now receive about $660,000.

[91] The testator’s two daughters had had limited contact with their father since his divorce from their mother but had retained their relationship with him. Under the will each daughter would receive about $105,000

[92] There is some variation in these figures when compared with the present value of the estate set out in exhibit 4.  Most of this variation is due to a discrepancy between what is said in the exhibit to be the agreed value of the real estate and the actual values ascribed by Mr Sheehan.

[93] Since the death of the testator, the applicant has sold Lot 602 Targinnie Road and the bulk of the proceeds have been disposed of although the applicant was unwilling or unable to say how they had been disposed of.   She now lives at Cooloola.  She has not disclosed the circumstances in which she now lives although her affidavit describes her as unemployed.

[94] The proper time to consider what would have been adequate provision is at the date of death: see Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 524.

[95] Having regard to the position of the applicant at the time the testator died, the notional wise and just testator would have recognised a duty to make provision for the future maintenance of the applicant.  He would not have foreseen a need to make provision for her housing since she had, and had always had, a residence of her own to which she could return at any time.  It seems to me that the notional testator would have had regard to the applicant’s history of independence throughout the relationship and reasonably expected a continuation of that state.  In my view, taking these matters into account and making provision for the applicant’s daily financial needs, the testator was entitled to make special provision for his sons knowing that anything left to the applicant would not ultimately pass down to them on the applicant’s death.

[96] The applicant estimates that she requires an income of $30,000 per annum.  Actuarial evidence supplied suggests that a capital sum of between $780,000 and $400,000 would provide such an income depending on investment return, superannuation treatment and life expectancy.  The higher sum relates to a life expectancy now of 98 at a rate of return of 6.5%.  The lower amount would provide an income to 84 at a return of 8.5 % with favourable superannuation treatment.  The average return on cash invested over the last 26 years is 9.2%.  Returns on share investment over the same period have been an average of 14% although the risks have been higher.

[97] Having regard to all the factors known or foreseeable to the testator at the date of death, I consider that a legacy of $450,000 would have been adequate to provided for the proper maintenance and support of the applicant.  It provides for the support of the applicant over a relatively long life expectancy which would be supplemented by anything else she may be able to earn.  It also represents about 25% of the estate and allows the testator to satisfy his wish to favour his two sons.

[98] I therefore order that the last will of the testator dated 25 July 2000 be read and construed as if it provided for a legacy to the applicant in the amount of $450,000 payable in priority to all other gifts, devises or bequests, such legacy being in substitution for any other provision made for the applicant in the will.