New South Wales Supreme Court CITATION : Elliott v. Longstaff [1999] NSWSC 170 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4356/96 HEARING DATE(S) : 23 November 1998 JUDGMENT DATE : 10 March 1999 PARTIES : Muriel Betty Elliott (P) Clive Hendry Longstaff (D) JUDGMENT OF : Master McLaughlin COUNSEL : Mr. J. R. Wilson. (P) Mr. P. Hallen, SC. (D) SOLICITORS : Gordon Garling Moffitt (P) Teece, Hodgson & Ward (D) CATCHWORDS : Family Provision; Claim by former wife; Separation after marriage of twenty-eight years; Consent orders for spousal maintenance and property in matrimonial proceedings; After separation deceased maintained a continuing relationship with plaintiff until his death twenty-three years later; Financial assistance given by deceased to plaintiff throughout that period; Deceased by his will made provision for plaintiff; Factors which warrant the making of the application; Whether plaintiff can be regarded as a natural object of the testamentary bounty of the deceased; Contributions of plaintiff as homemaker and parent; Plaintiff for fifty years had almost entire responsibility for an intellectually retarded child of the marriage; Present need of plaintiff for security and flexibility in her accommodation; Large estate; No competing claims ACTS CITED : Family Provision Act 1982 Churton v. Christian (1988) 13 NSWLR 241 Lynch v. Lynch Master Macready (24 August 1992 unreported) CASES CITED : Graziani v. Graziani Cohen J (20 February 1987) Dijkhuijs v. Barclay (1988) 13 NSWLR 639 Franke v. Public Trustee (No. 2) (Court of Appeal 16 April 1993 unreported) DECISION : See Paragraph 45. 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 9 December 1996 Muriel Betty Elliott, the plaintiff, claims an order for provision out of the estate of the late John George Elliott (to whom I shall refer as "the deceased"). The plaintiff was the former wife of the deceased, they having been married from 1944 until 1975. 3 It should here be noted that when the proceedings were instituted two plaintiffs were named in the summons, being Muriel Betty Elliott and her daughter Stephanie Rae Elliott (a disable person who brought her proceedings through her mother). It is unnecessary for me to give consideration to the claim for relief sought on behalf of that latter plaintiff, since Stephanie Rae Elliott died on 14 September 1998. (The plaintiff was the executor of and sole beneficiary under Stephanie's will.) 4 The deceased died on 14 July 1995, aged 78. He left a will dated 21 June 1990, probate whereof was on 13 September 1994 granted by the Supreme Court of Queensland to Clive Hendry Longstaff, the executor named in such will (who is the defendant to the present proceedings). That grant was resealed in New South Wales on 4 October 1996. 5 The assets of the deceased (most of which have now been realised, but none of which have yet been distributed) total in value about $1,430,000. Among those assets is a house property situate at and known as 38 Sydney Road, Concord, which had been the matrimonial home of the deceased and the plaintiff throughout their marriage, and in which the plaintiff has continued to reside since their separation. A valuation of that house property (Exhibit 1) obtained by the defendant shows the present value to be $390,000. The deceased had liabilities totalling about $82,000, resulting in a net estate of about $1,348,000. When allowance is made for the costs of the present proceedings and for other expected administration expenses, the value of the distributable estate will be about $1,285,000. 6 The deceased was born on 26 October 1916. On 20 January 1944 he married the plaintiff. At the time of their marriage he was an officer in the Royal Australian Air Force (seconded to Qantas as a pilot), and had already qualified as a chartered accountant. 7 Although no children were born of their marriage, the deceased and the plaintiff adopted a daughter Stephanie Rae (born 8 June 1948) and a daughter Valerie Joan (born 3 July 1951). In addition, they also adopted a son Martin Kenneth (born 30 August 1955). However, Martin suffered from epilepsy, which was detected quite early, and his adoption was rescinded. Stephanie was intellectually handicapped. Throughout her life, until her death on 14 September 1998, aged fifty, she lived with the plaintiff, by whom she was cared for and principally maintained. 8 In 1946 the deceased and the plaintiff acquired a house property at 38 Sydney Road, Concord, which was to be their matrimonial home throughout their marriage and in which the plaintiff has continued to reside from the time of their separation. That house property was purchased in the name of the deceased alone, for £1,400. 9 The plaintiff (who was born on 29 July 1918 and is presently aged 80) had grown up in various country districts in New South Wales, and had left school at the age of fifteen. Thereafter she worked as a governess on rural estates at Jugiong, at Yass and at Hay, and for about four years immediately before her marriage she was employed in a general store at Griffith. 10 At the time of their marriage the deceased had savings of about £500 and the plaintiff had savings of about £40. Neither the plaintiff nor the deceased owned any other property at that time. 11 The plaintiff was not in employment throughout the marriage. She devoted the entirety of her married life to being a full-time wife and mother. Almost alone she was responsible for the entirety of the duties and functions of homemaker and parent, especially in regard to Stephanie (who for the entirety of her life required care and attention far greater than that required by a normal child). The plaintiff had to maintain the household from an allowance given to her by the deceased, which at the time of separation in 1972 was $200 a month. . On occasion, when the plaintiff through her ability in domestic management and housekeeping frugality, was able to save something from her monthly allowance, the deceased would suspend payment of that allowance for a period. He often acknowledged in writing that he had done so, but he did not ever reimburse the plaintiff for those withheld amounts of her housekeeping allowance. The plaintiff estimated that those amounts would have totalled, over the years of the marriage, about $20,000. 12 In 1965, when she was aged about seventeen, Stephanie commenced to receive what was then known as an invalid pension (but later called a disability pension). Until the separation of the plaintiff and the deceased some seven years later, the entirety of Stephanie's pension was retained by the deceased --- he told the plaintiff that he would bank it in an account in his own name, and would hold it in trust for Stephanie. The plaintiff estimated those pension payments thus retained would have totalled about $20,000. However, the deceased never paid the amount of that pension to Stephanie or to the plaintiff, or accounted to either of them for the amount to which he had retained. 13 At a later stage Stephanie was able to work part-time in sheltered employment. Shortly before her death she was receiving $18 for two days' work each week. It was necessary for the plaintiff to drive Stephanie to and from that sheltered employment. 14 The younger daughter of the plaintiff and the deceased, Valerie Joan (known in the family as Meg) lived with her parents until her marriage in 1971, when she was aged about twenty. Meg had completed Year 10 at Strathfield Girls High School, and had subsequently pursued a secretarial course. She was in employment from 1969 until her marriage, paying $15 a week by way of board to her parents. At the time when Meg commenced work the deceased said that he would invest for her the amount of that weekly board and that he would give her back the investment when she needed it. According to the plaintiff, in the ensuing three years until her marriage Meg paid a total of about $4,500 to her father, but no part of that money was ever repaid to her. 15 The plaintiff's responsibilities as homemaker and parent, included all cooking, washing, ironing, and general housekeeping duties, for herself, the deceased, Stephanie and (until she left home) Valerie, as well as managing the household budget and the purchase of all food and other household requirements. She did the entirety of the family shopping. In addition she attended to the gardens, although occasionally the deceased mowed the lawns. It was rare for the deceased to help with any of the housework. 16 Shortly after the deceased retired from his employment with Qantas he departed from the matrimonial home on 16 November 1972 (without any pre-warning to the plaintiff). They were divorced on 31 July 1975, and consent orders were made in relation to maintenance and property. 17 Pursuant to those consent orders the plaintiff received: (a) A life interest in the Concord house property. (b) Maintenance of $55 a week. (c) Interest in a life insurance policy (stated by the deceased to have a surrender value of $4,000). (d) The sum of $1,000 18 The evidence discloses that after their divorce a continuing relationship existed between the plaintiff and the deceased. In addition to the weekly spousal maintenance (the payment of which appears to have been somewhat irregular, and to have required, at times, prompting by the plaintiff), the deceased from time to time gave to the plaintiff various amounts of money and financial assistance. He paid for certain electrical appliances (including a television, a video receiver and a microwave oven) and other household items, as well as the cost of certain carpeting and painting work for the house. On two occasions, in 1980 and again in 1990, he gave to her the sum of $10,000, to assist the plaintiff in the purchase of a new motor car. The deceased paid her membership fees for the Concord Golf Club, of about $1,000 a year. The deceased also gave to the plaintiff a set of good quality golf clubs, a golf bag, and two rings. 19 The deceased also maintained a continuing and affectionate relationship with his daughter Stephanie. It would appear, however, that once he left the family home the deceased made no financial contribution towards Stephanie's maintenance, although from that time Stephanie's pension was paid directly to her and was no longer retained by her father. 20 In 1979 the deceased married Doris Sinclair Elliott, who died on 13 May 1993, during the lifetime of the deceased. The plaintiff said that after the death of his second wife the deceased telephoned her and said, "I would still like to be married to you". The plaintiff regarded that statement as being close to an apology by the deceased for his conduct towards her. During the last few months of his life the deceased telephoned the plaintiff regularly, and the plaintiff described him as being very pleasant in those conversations. 21 By his will the deceased appointed Clive Hendry Longstaff (the husband of a deceased niece of the deceased) as his executor. He gave a legacy of $50,000 to the plaintiff and a legacy of $20,000 to the defendant. The deceased gave a life estate in the house property at Concord to the plaintiff and their daughter Stephanie, with the remainder to the defendant. The residue of the estate was given to the deceased's second wife absolutely, but in the event (which happened) that she did not survive the deceased, then the residue was to be divided into six equal shares, one such share to pass to each of five named great-nephews and great-nieces of the deceased, and the final share to be held by the defendant on a discretionary trust for Stephanie for life, with remainder to the defendant. 22 The practical effect of the provisions of the will, in so far as they concern the plaintiff, is that she receives a legacy of $50,000 and a life estate in the house property. She is responsible for the payment of all outgoings in respect to that house property. 23 At the present time the plaintiff has the following assets: (a) Life interest in the house property at 38 Sydney Street, Concord) (b) 1990 Nissan Pulsar sedan motor car (estimated value, $7,000) (c) Furniture and household effects (estimated value, $5,000) (d) Advantage saver account, Westpac - $2,452 (e) Commonwealth Bank of Australia account - $3,724 (f) Commonwealth Bank of Australia account - $26,884 (g) Interest in estate of Stephanie Elliott - $25,258. (h) Legacy of $50,000, plus interest, under the will of the deceased (which legacy has not yet been paid). 24 The plaintiff has no liabilities. 25 The plaintiff's sole income consists of the age pension (which she has been receiving since about 1980), which is presently in an amount of $362.70 a fortnight; together with a very small amount of interest earned by the moneys held in the above bank accounts. 26 Whilst Stephanie was alive, she and the plaintiff were in the practice of pooling their resources. It is now necessary for the plaintiff to meet the entirety of all her household and personal expenses from her own income. 27 The plaintiff as a former wife of the deceased is an eligible person within paragraph (c) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. 28 However, since she is an eligible person only within paragraph (c) of that definition, it is necessary for the plaintiff to satisfy the requirements of section 9 (1) of the Family Provision Act which provides, Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of "eligible person" in section 6 (1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors. 29 The plaintiff submits that there are those factors, and in that regard relies upon the decision of the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241. In that case Priestley JA, concerning a claim by a former wife, said, at 254, The matters I have mentioned regarding the relationship of Mr and Mrs Christian after their separation and divorce seem to me to be factors which warrant Mrs Christian's making of an application under section 7 of the Family Provision Act. They seem to me to show that the separation and divorce did not completely sever Mrs Christian's relationship with her former husband and that she was in a position different from that of a woman of whose relationship with her former husband all that is known is the fact of the divorce. The circumstances make applicable to her the description of a person who might well, to use McLelland J's words, be "regarded as a natural object of testamentary recognition" by the deceased. 30 The plaintiff also relies upon the following passage of the judgment of Master Macready in Lynch v. Lynch (24 August 1992, unreported), Although I do not relish the thought of numerous attacks in the future upon Family Court deeds, it does seem to me that the demonstrable unfairness (although upon legal advice) of the settlement is a factor warranting the making of the application. 31 In the instant case the plaintiff points to the following matters as constituting factors warranting the making of the application. Firstly, the property settlement of 1975 overwhelmingly favoured the deceased. He was left with all of his assets other than a life interest in the Concord property and the proceeds of a modest insurance company. 32 Further, the relationship between the parties continued after the dissolution of their marriage and up to the death of the deceased. Part of that relationship was concerned with the deceased's obligations to make maintenance payments to the plaintiff. In addition, the plaintiff had the care of their child Stephanie, and it is clear that the deceased was also interested in Stephanie's well-being. But the relationship went further, however, because the deceased provided financial assistance, in addition to the maintenance payments, to the plaintiff, whereby she able to purchase a motor vehicle and subsequently to replace that motor vehicle (the plaintiff still drives that latter vehicle), and whereby she was also able to maintain her membership of a golf club. Most importantly, it must be appreciated that the deceased by his will made provision for the plaintiff. 33 The defendant in disputing that there are such factors warranting the making of the application relied upon the unreported decision of Cohen J in Graziani v. Graziani (20 February 1987), where His Honour commented that the relevant factors are those suggesting that there may have been a duty to the person within the class affected of a like kind to the duty generally considered to exist in relation to persons within the classes of eligible persons not affected by section 9 (1). 34 It was submitted on behalf of the defendant that the fact that the deceased left a legacy to the plaintiff in no way determines the matter. A testator may be very fond of a person and quite close to that person and may provide for that person in his will; but, so it was submitted, those facts do not make such a person (in this case, the plaintiff) a natural object of the testamentary bounty of the testator. 35 The defendant submitted that the consent orders concerning spousal maintenance and property settlement made between the parties at the time of the dissolution of their marriage on 31 July 1975 (which was almost twenty years before the death of the deceased) for all practical purposes terminated any relationship between the parties, and that the contact between the parties thereafter was essentially in consequence of the responsibilities accepted by the deceased and reflected in the terms of those consent orders. In this regard the defendant relied upon the decision of the Court of Appeal in Dijkhuijs v Barclay (1988) 13 NSWLR 639, and, in particular, the judgment of Kirby P at 650-651. The defendant submitted that the continued contact by the plaintiff could not be regarded as a factor warranting the bringing of the present proceedings. However, in Franke v Public Trustee (No. 2) (Court of Appeal, 16 April 1993, unreported) Clarke JA (with whose reasons Kirby P agreed) regarded the lack of a continuing relationship between a former wife and the testator to be a relevant consideration in concluding that there were no factors warranting the making the application. 36 Despite the foregoing submissions on behalf of the defendant, I am satisfied that the continued contact between the plaintiff and the deceased for the last twenty years of the deceased's lifetime, the financial assistance and benefits which the deceased afforded to the plaintiff beyond those required of him by the terms of the consent orders made in the matrimonial proceedings between them, the testamentary provisions made by the deceased for the plaintiff by his will, and, in addition, the fact that the matrimonial orders overwhelmingly favoured the deceased at the expense of the plaintiff, all constitute factors which, in my view, warrant the making of the present application by the plaintiff. I also regard the strength of the plaintiff's present claim as constituting a further factor warranting the making of the application. 37 Accordingly, it becomes necessary for me to proceed to a consideration of the claim of the plaintiff for an order for provision for her maintenance. 38 I consider it to be relevant to the plaintiff's claim that throughout the marriage of the plaintiff and the deceased, for the period of twenty-eight years until their separation, it was to an extent as a result of the contributions made by the plaintiff, as a loving and devoted mother to the two children, one of whom was retarded, and as a responsible and full-time homemaker, who showed herself to be a careful and frugal manager of the household expenses, that the deceased was enabled to build up his assets, and to acquire what was, at the time of his death, a not insubstantial estate. 39 The plaintiff is currently content to remain in the house property at Concord, which has been her residence for the past 52 years. However, it was submitted on her behalf that the life interest given to her in that house property by the will of the deceased does not accommodate the possibility that, as she advances in years, that house property may not be suitable or appropriate to her needs. It will be appreciated that by the will the plaintiff has a life interest, not a mere right of residence, and that, in consequence, were she no longer to live in that property she would still be entitled to rent it out and retain any income from such rental. But in such circumstances, any income which she might derive from the Concord house property, added to her other assets, still would not be sufficient to enable her to acquire other accommodation of her own --- other than, possibly, rented accommodation. 40 The present need of the plaintiff is for security and flexibility in her accommodation. She presently has security, but not flexibility. 41 I am of the view that it is appropriate that the plaintiff should receive the Concord house property absolutely. Thus she would be enabled, if that property were to become unsuitable for her needs or circumstances, to dispose of that property and to acquire some other property of her choice. 42 The present income of the plaintiff and her other assets, together with the legacy of $50,000 which is given to her by the will of the deceased, are such as will enable her to live at a standard appropriate to that which she has enjoyed since her divorce from the deceased, and still to retain a fund to meet contingencies. 43 The entitlement of the plaintiff to relief along the foregoing lines must, however, be considered in the light of any competing claims of other persons upon the testamentary bounty of the deceased. The only other eligible person in relation to the deceased is, apart from the plaintiff, their daughter Valerie Joan Knight (who although served with a notice of claim, has not herself made any claim in respect to her father's estate). Neither Mrs. Knight nor any of the beneficiaries has placed before the Court any evidence concerning her or his financial and material circumstances. Neither has any submission been made by the defendant that the circumstances of any of the beneficiaries are such as would have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the plaintiff might otherwise have established. 44 At the conclusion of the hearing Counsel for the respective parties requested that I make no order as to costs until I have published my decision in this matter, and the parties have had an opportunity of making submissions concerning costs in the light of that decision. 45 Accordingly, I make the following orders: 1. I order that, in lieu of the provision made for her by clause 3 (c) of the will of the late John George Elliott ("the deceased"), the defendant hold the house property at 38 Sydney Street, Concord, for the plaintiff absolutely. 2. I stand the matter over to a date to be fixed by arrangement with my Associate (being no more than seven days from the date hereof), for argument as to costs. I certify that this and the preceding pages are a true copy of the reasons for judgment of Master McLaughlin Dated: 10 March 1999 Associate Mark A. Provera ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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