Moseley v Moseley [1999] NSWSC 330

New South Wales Supreme Court CITATION : Moseley v Moseley [1999] NSWSC 330 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3286/98 HEARING DATE(S) : 22/02/99-23/02/99 JUDGMENT DATE : 16 April 1999

PARTIES : Vera May Moseley v Leslie Owen Moseley JUDGMENT OF : Master Macready at 55

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : C. Harris for plaintiff M. Gorrick for defendant SOLICITORS : Walker Taylor Edwards & Smith, Sydney F.J. Smith & Co., Newport Beach, NSW CATCHWORDS : Family Provision and Maintenance Practice. Application made out of time. Whether sufficient explanation for the delay in making the application when applicant knew of the time limits. Application refused. CASES CITED : Re Guskett (1947) VLR 212, Re Lauer 1984 VR 180 and Bearns v Bearns-Hayes Young J, 7 May 1997 followed. DECISION : Summons dismissed

28 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday, 16 April 1999

3286 of 1998 VERA MOSELEY v LESLIE MOSELEY

JUDGMENT

1 MASTER MACREADY: This is an application under the Family Provision Act in respect of the estate of the late Norman Leslie Moseley who died on 5 March 1996. The deceased was survived by his second wife, the plaintiff, in these proceedings, seven of his children by his first marriage and two step children who are children of the plaintiff by her first marriage. 2 In 1936 the deceased had married his first wife, Vera, who died in October 1964. At that stage the deceased had seven children some of whom were quite young. The plaintiff who was born in 1921 married and had two daughters, Diane and Nola. Her husband died in 1963. The plaintiff and the deceased met in 1965 and in due course after the plaintiff's daughters married, the deceased and the plaintiff married in 1972. They were together in what is clearly accepted on the evidence as a close and loving relationship until the death of the deceased on 5 March 1996. When the plaintiff and the deceased married there were two children of the deceased who were still living at home. One was the son, Terry who was then 17 and the other the son, Brent, who was then 12. These children remained at home for a while, Terry leaving in 1975 and Brent in 1978. Both the plaintiff and the deceased retired in 1981. 3 The deceased made his last will on 1 April 1985. Under that will the deceased appointed his son, Leslie Owen Moseley to be Executor and Trustee and gave his property in clause 3 of the will. That clause is as follows:- "I give devise and bequeath all my property both real and personal whatsoever and wheresoever situate unto my said Trustee upon trust as follows:- 1. To permit my wife VERA MAY MOSELEY to reside in the house known as 288 Lakemba Street, Lakemba (hereinafter called "my property") as long as she wishes provided she pays the rates and taxes levied on my property, the premiums on any insurance policies taken out and keeps my property in good repair. 2. Upon my said wife ceasing to live in the house permanently or to comply with the conditions of her right of occupation my said property shall be sold and the proceeds of which shall be divided equally between the following persons who survive me and attain the age of eighteen (18) years if more than one as tenants in common share and share alike:- VERA MAY MOSELEY, LESLIE MOSELEY, YVONNE BYERS, JOHNS MOSELEY, CLAUDETTE SANDERFORD, GARY MOSELEY, TERRY MOSELEY, BRENT MOSELEY, DIANE MARGARET LORING, NOLA ROSE TANNER." 4 The plaintiff herself at the same time made a will in which she left her property to her two daughters. 5 The deceased's only assets at the date of his death were his property at 228 Lakemba Road, Lakemba and a sum of $18,000 in his bank account. A question arises as to what is the proper disposition under his will of the money in his bank account. 6 It can be seen that in clause 3.1 there is a specific provision in respect of the house. The question which arises is whether there is a residuary gift in the will which effects a disposition of the $18,000 in the bank account. The plaintiff contends that there is no residuary bequest and that she is entitled to the sum on intestacy. The defendant, on the other hand, contends that clause 3.2 of the will should be properly construed as containing a gift of the residuary personal estate to the ten named persons. This is said to arise from the use of the words "my said property". The submission pointed out that in clause 3.1 reference is made to the house in contrast to the reference made later in 3.2 to the word "property". Although one would normally construe such a clause in a will in order to avoid an intestacy in this case this is not possible. Clause 3.1 defines the house as "my property" and clause 3.2 picks up that definition by use of the words, "my said property". In addition clause 3.2 only disposes of the proceeds of sale and the words used are not apt to include cash or moneys in a bank account which can not be sold. Thus I will proceed on the basis that the plaintiff was entitled to the $18,000 subject, of course, to the costs of administration. 7 The matter is more complicated because the defendant, executor, has in fact distributed the bank account within the 18 months period after the death of the deceased and prior to any application in these proceedings. The defendant distributed the funds to the ten persons named in clause 3. This distribution included the plaintiff. The defendant did not publish any notice of intended distribution and, accordingly, it would seem that his distribution has been improper. In these circumstances he should be taken to have a right to recover these funds from the beneficiaries to whom they were distributed apart from the plaintiff. I note that none of the beneficiaries have put before the Court any evidence of their financial situation and presumably the funds could be recovered by the executor to pay the costs of administration and then pay the balance to the plaintiff. 8 In respect of the distribution the plaintiff herself, as I have mentioned, received a cheque in respect of the partial distribution. That cheque she banked. She discussed the matter with the executor before the distribution and expressed the view to him that the funds should be kept in case anything was necessary for the house. Notwithstanding this she did accept it. However, I do not think that one could suggest that she has acquiesced in that distribution to the other beneficiaries. She made a protest and it was ignored. 9 There was a dispute in the evidence before me on the value of the property at 288 Lakemba Street, Lakemba. This property comprised a brick dwelling house on one title, a small shop on another separate title at the front of the block and a further vacant title. The shop had at one time been used by the deceased for his barber's shop but at the date of death it was let to the proprietors of a video store. Income in the order of $80 per week was received from this shop and since the date of death the plaintiff has received that income. This has been with the acquiescence of the executor. A question which arises is whether the plaintiff was entitled to this income. Her bequest was in respect of the house, 288 Lakemba Street. The shop is a different building in Lakemba Street and, accordingly, she would not be entitled to that income. 10 Evidence was given for the defendants by Mr Randall, a valuer, and he valued the property which included all the real estate and improvements at $277,000. Mr Coleman, valuer, gave evidence on behalf of the plaintiff. He had been engaged to report on some offers that had been made for the property. His valuation was that the property was worth $350,000 although he was prepared to accept that an offer for $330,000 reflected the lower end of the range of a range of $330,000 to $350,000 which could be obtained on the sale of the property. He also addressed the value of the property having regard to the plaintiff's life interest or right of residence. 11 The subject land is in an area which was subject to redevelopment for commercial interests and this is a matter to which I will return later. However, there was another property, 280 Lakemba Street, which sold for the purposes of redevelopment for a therapeutic massage centre. That sale showed a price of $344 per square metre for the site. There were other sales but none really comparable given their different zoning and history. Mr Coleman's valuation represented a substantial increase in value per square metre. He endeavoured to justify this by reference to the possible commercial redevelopment and the fact that the property was closer to a corner. I did not find his arguments convincing. I would accept that the value of the property is more appropriately as stated by Mr Randall. He had another comparable sale which assisted him in arriving at his valuation. 12 The present application has been made out of time. Time expired on 5 September 1997 and the proceedings were only commenced on 24 July 1998. 13 Accordingly it is necessary for the court under section 16 of the Family Provision Act to consider whether to allow an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 14 His Honour Young J has in several cases dealt with the principles governing applications to extend time under this Act. In Massie v Laundry (unreported 7 February 1986) he indicated that the factors which one looks at include the following:- (a) is the reason for making a late claim sufficient? (b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended? (c) has there been any unconscionable conduct on either side which would enter into the equation? 15 He also accepts apparently a view which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 16 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief." 17 There have been a number of first instance decisions in which this approach has been followed. See for example Warren v McKnight (1996) 40 NSWLR 390 and Dare v Furness (1997) 44 NSWLR 493. 18 I turn to the question of the explanation for the delay that is proffered by the plaintiff for lateness in making her application. This explanation and the facts surrounding it have to be judged bearing in mind that the plaintiff had the right to reside in the house as long as she wished under the terms of the deceased's will. I have mentioned that the property was in an area which was likely to be redeveloped and there were efforts over a period of some two and a half years after the death of the deceased by a developer to put together a development proposal encompassing a number of properties including the house in which the plaintiff had the right to reside. This led to approaches from three people, one of whom may have been acting for the final developer with whom discussions were held. 19 After the funeral of the deceased there was evidence by the sister of the first defendant, Mrs Martin, that she did raise with the plaintiff the question of whether or not she wanted to continue to live in the house now her husband was dead. She was informed that it was the plaintiff's desire to do so it having been their home. The first approach from someone on behalf of developers was from Mr Kennedy. The initial approach from Mr Kennedy and discussions he had with the plaintiff led her to seek advice and she has sworn to the fact that on 20 January 1997, or about that time, she obtained advice about the Family Provisions Act from her solicitor, Margaret Hole. Her solicitor made her aware that there was a time limit of 18 months from her husband's death in which to bring any claim. Thereafter there were apparently further discussions. There is in evidence a letter from Mr Kennedy of 16 May 1997 which refers to a proposal for redevelopment. Part of that proposal was the purchase of another house to accommodate the plaintiff elsewhere which would be held upon the same terms as the provisions of the will of the deceased. Mr Kennedy seems to have dropped out of the picture after that because in October 1997 there is a note to the plaintiff from Dr Burns, one of the interested developers, who owned a property nearby. He was apparently involved in the development with a Mr Pignat. It maybe that Mr Kennedy was a consultant who was previously employed by Mr Pignat but after October the discussions seemed to be continuing between the plaintiff and Mr Pignat. In January 1998 there was a meeting with Mr Pignat and members of the family to discuss the proposal for the redevelopment. 20 In a letter of 14 January 1998 Mr Pignat addressed a proposal to the Moseley family for an option for $330,000. Clearly that proposal was predicated upon Mrs Moseley, the plaintiff, moving to another dwelling and purchasing it because it refers to a share for Mrs Moseley of $33,000 and her daughters two shares, for similar amounts, being put towards the purchase of another dwelling for her. It also refers to the balance of the purchase price for this new dwelling being provided by the developer and with the legal costs to be paid for by the developer. There are a number of different versions in the evidence of what occurred at that meeting. Claudette Martin referred to the fact that all that was offered was an option and that the plaintiff had said to Mr Pignat words to the effect that she had everything where she was presently residing, that she had the rent from the shop and in effect did not wish to move. 21 The defendant also gave evidence that after the meeting the plaintiff said that she was happy living in the house and for various reasons which she expressed, she did not want to move. 22 The plaintiff herself indicated that she was not certain what she wanted to do but she did say she was quite happy living there, that it provided for all her needs and she did not consider moving at that time. It is apparently some time later that the thought of construction work going on around her made her give further consideration to the proposal. 23 On 30 March 1998 Mrs Moseley received a further offer from Mr Pignat which was in similar terms to the previous one. However, in this offer there was specified an amount of extra provision to be provided by the syndicate to the plaintiff for her to put towards the purchase of a house. The amount was $126,000 increased by the consumer price index plus stamp duty, legal and other costs. It was contemplated that this sum plus $99,000 from the other shares to which the plaintiff and her daughters were entitled, would be used to purchase a house for her. In a letter typed by her daughter and sent to her solicitor, the plaintiff sought her solicitor's advice because she was unsure of what she should do. Around this time there was a proposal from a Mr Websdale but nothing seems to have eventuated from this as the plaintiff did not trust him. 24 Towards the end of May or early June the plaintiff, in discussing the proposal with Mr Pignat, asked him to give details to the defendant but omitting the amount that was going to be paid to her of $126,000. Accordingly, he sent a letter of 2 June addressed to her but obviously forwarded to the defendant, Mr Moseley, on the plaintiff's instructions which simply omitted the amount of the additional provision to be provided to her. Reference was made simply to an additional amount to be provided. In the absence of an amount in that letter, Claudette Martin, rang up Mr Pignat and asked him the amount. She was informed that the amount was in the order of $130,000 or less. She rang because she could not see the point of having a meeting unless she knew the amount. The meeting was convened on 21 June and the plaintiff, the defendant, his siblings and the plaintiff's daughters attended. Mr Pignat also attended. Apparently this was not expected by the plaintiff. 25 At the meeting it was disclosed by the plaintiff's daughter, Diane, that her mother no longer wished to live in the Lakemba house. The defendant found out about the amount of $126,000 which was to be paid to the plaintiff directly as well as the purchase price for the property the amount of which had not changed throughout negotiations. There was discussion at the meeting which probably made it clear that the total amount offered was $330,00 plus $126,000. The plaintiff was asked in whose name the property was to be purchased and the reply was that it was to be in her name. There is no doubt that it was made perfectly clear that the plaintiff would get substantially more than the others. According to the plaintiff the defendant said that they, namely, he and his siblings were not going to go ahead with any agreement which saw the plaintiff get $126,000 or any amount in excess of the amount the rest of them would receive. This conversation was not denied by the defendant. 26 Mr Pignat could see that the matter was not getting anywhere and the meeting broke up. Thereafter the plaintiff gave instructions to commence proceedings and the proceedings were commenced the next month. The property is still owned by the estate, the plaintiff still lives in it and there is now no current proposal for a developer to buy the property. 27 There was a lot of heat generated in this case about the circumstances in which the plaintiff in calling the final meeting endeavoured to have Mr Pignat not give the details of the amount she was to receive. In giving her evidence on this aspect I found the plaintiff evasive in answering questions about this aspect and it is clear to me that she intended the others not to know about the payment to her. It would also seem clear that the children of the deceased did not know the amount of the extra payment which she had managed to negotiate with Mr Pignat until just before the meeting in June although they must have been aware from the earlier offers that there was some proposal for her to be paid some money. 28 The importance of this question of the extra payment to the plaintiff is not really clear. It seems that it was not fully explored by the parties at the meeting. It seems clear that the defendant was not prepared to accept the plaintiff getting this extra amount of money and Claudette Martin, his sister, appears never to have reached the stage of deciding whether or not that may have been important. In her mind the fact that the option was for two years with no value to the estate or the plaintiff, particularly as she, the plaintiff, now wished to move to new premises, seemed to put an end to any consideration of the final arrangement. 29 It is necessary to see how the plaintiff puts her explanation for the delay. Not unlike many people in her situation the plaintiff was upset by her husband's death and did not realise that she ought to have given consideration to her future needs. She was certainly happy living in the house. She did not initially think it might be inappropriate in the future. These concerns were ones which probably pre-date her obtaining advice in about January 1997 from a solicitor about the possibility of making a claim. Her other explanations are that she hoped some arrangement could be made with the defendant and his family to enable another residence to be purchased if the Lakemba house were sold. She got to a point where she realised that the defendant and the family would not agree to another house being purchased and she hoped, encouraged by the various property developers that she would get sufficient from that sale to provide for a house for herself in her own right. She then says that it was only when this proposal was vetoed in June that she realised that she would have to fend for herself and commence these proceedings. 30 There is a dispute on the evidence about conversations in respect of the second aspect, the explanation, between the plaintiff and the defendant in about mid 1997 when she mentioned being pestered by a developer and asked the defendant whether the proceeds of sale could be used to buy another property for her. She says the defendant said, "Definitely no". 31 It seems to me, having heard the evidence and particularly considering the type of offer that was being made by the developer, that what the defendant was saying was in fact that there was no point accepting such an option because there was no benefit to the defendant, i.e. at the end of the two year period the option may not be exercised and nothing would have been achieved in that time. It is also likely that the discussion was between Mr Moseley and Mr Kennedy who reported the conversation to the plaintiff. It is not unnatural that the plaintiff should misinterpret these comments, particularly as she says she had a firm belief that such a proposal was likely to succeed. 32 The defendant's case on this aspect is that it was not until after January 1998 that the plaintiff considered that the provision made for her was not sufficient. She had had the benefit of advice in January 1997 about her right to claim and it was only when she found a developer in early 1998 who was prepared to pay her a substantial sum of money that she changed her mind and decided to pursue that option. Ultimately, when that failed, she commenced proceedings. In these circumstances the defendant submits that that there has not been an adequate explanation. 33 The difficulty with the matter is that the plaintiff knew in January 1997 that the time limit would expire in September 1997. She seems to have let that opportunity go by and even in January 1998 she was still saying she wanted to live in the property. 34 Her change in heart was a result of the dispute which occurred in June 1998 when it became clear to her that she was unlikely to obtain sufficient funds from the sale to a developer to purchase a house. 35 I have above referred to the principles which the Court follows when deciding these questions of extension of time. There does not seem to be much doubt about the principles. Their application to the facts in each case is always a matter of difficulty. For this reason one must be cautious when applying decisions on facts in other cases to the case in hand. 36 In Bearns v Bearns-Hayes, Young J unreported 7 May 1997, His Honour spent some time considering the various authorities dealing with extension of time. His Honour was there concerned with a case where a widow made an application sixteen months out of time. That was a case concerning a large estate of some $4 million in which the widow had been left a quarter share of the house and some other funds. There was provision in the will which required the house not to be sold for twelve years but, in fact, that was not sufficient to have prevented its sale and the eviction of the plaintiff from her home. His Honour analysed the facts and found that the uncontradicted evidence showed that up until late 1984 the plaintiff had no intention of making an application. It was also almost certainly the case that she did not know that there was a right to make an application but even if she had known she had no motivation to do so. She had assurances from her family that her possession of the property at Riverwood was secure, she had income flowing to her from the estate investments and she had about $230,000 of her own. His Honour then referred to the change which occurred in the second half of 1994 when serious arguments broke out between the parties. His Honour concluded that the alteration to the picture because of family arguments at the end of 1984 and the beginning of 1995 was insufficient to amount to sufficient facts within s 16(3). Accordingly, he refused the application to extend time. 37 In Re Guskett, to which I have referred, there was a failure to proceed because the Executors were making an allowance to the plaintiff to support herself and her children which later was found to be inadequate. This was held to be insufficient cause. At page 215 Herring CJ said:- "In a case such as the present the applicant is, I think, unable to show any reasons why I should grant the indulgence sought. Hade she only recently become aware of her rights under Part V the case would have been very different, but a person who is aware of them within the time specified and chooses for some reason satisfactory to her at the time not to exercise them, cannot come years afterwards and demand an extension of time on the ground that she now finds it desirable to exercise them. She had her opportunity and such injustice as she may now consider herself to be suffering is her own doing and not one brought about by the time limit from which she seeks to be relieved. Her reasons for now applying to the Court may appear to her sufficiently compelling, but they do not afford any ground for excusing her failure to prosecute her application within the time allowed." 38 In Re Lauer (1984) VR 180 Young J held that a deterioration in an applicant's financial position cannot of itself be ground for granting an extension of time nor can the mere fact that the value of the estate has been inflated beyond what might have been expected could be a ground. Other factors which are sufficient appear for example in Neil v Knott (1984) 68 ALJR 509 where illness and poverty were sufficient to allow an extension. 39 The difficulty in the matter is that the factual situation in Bearns v Bearns-Hayes is almost identical to the present situation. The approach to the problem in Re Lauer was relied upon by Young J in Bearns. It is a similar approach to that in Re Guskett to which I have referred. Such decisions are binding on me and, accordingly, I must conclude that the explanation for the delay is not sufficient to amount to sufficient facts within s 16(3). Notwithstanding that I have found this way I will deal with the remainder of the application in case some other Court should take a different view. 40 The next matter to be considered is whether the beneficiaries under the will would be unacceptably prejudiced if the time were extended. The only matter raised on this aspect is the fact that there are no assets in the estate other than the property and that there will be substantial costs. The plaintiff's costs are approximately $22,600 and the defendant's costs to date will be in the order of $15,000. The fact of incurring these costs is not per se a matter of prejudice. That is more a matter of inevitability in litigation. The improper distribution of the proceeds of the bank account partly exacerbate that matter. However, the property has not been sold. In the circumstances I am satisfied that the application of itself being late causes no prejudice. 41 The next matter to consider is whether there has been any unconscionable behaviour on the part of the plaintiff. Certainly the case has been fought on this issue. The defendant certainly believed that the attitude of the plaintiff in making separate arrangements with the developer for herself constitutes unconscionable conduct. However, in my view, although the plaintiff was secretive about it, it really was a matter which concerned her. She was quite entitled to endeavour to obtain the best deal she could. She after all was the owner of the right of residence and it was a right that has to be accommodated if the property were to be developed. There does not seem to have been any compromise of the offer to purchase the interest in remainder by the proposed purchaser of the property as a result of her endeavours. In these circumstances I cannot see that this is unconscionable conduct. In particular it should be noted that the valuation which the plaintiff obtained clearly indicated that the developer's offer was appropriate in offering an extra amount to the plaintiff for her right of residence. In my view there is no unconscionable conduct on the part of the plaintiff. 42 It is necessary to consider the prospects of success of the plaintiff in the event that time were extended. Accordingly, I will continue further with this aspect of the case before finally deciding whether or not to extend time. 43 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR 201 set out the two stage approach that a Court must take. At page 209 it said the following:- "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 Limited. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or 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 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. 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. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors." 44 As directed by the High Court I turn to the plaintiff's situation. She is presently 78 years of age and in good health. She lives in the deceased's house and is able to manage competently in that house. Her only assets consist of funds which she has saved. At the date of the death of the deceased she had funds of some $15,000 which she had saved in her own account. These have now grown to approximately $31,000. She has no car or other assets other than minor personal possessions. 45 The defendant has placed before the court no evidence of the financial circumstances of either himself or his brothers and sisters. Similarly no evidence has been placed before the court of the means of the plaintiff's daughters although I do note that there seems to be evidence that they were happy for their share of the estate to be provided to their mother. In these circumstances, the court can in giving consideration to whether there has been adequate provision for the plaintiff put to one side the financial situation of any of the other beneficiaries. 46 This raises quite squarely whether or not the provision made for the plaintiff by way of a right of residence is an appropriate one. The matter has been debated in a number of cases over the years. The High Court in White White v Barron (1979-1980) 144 CLR 431 at page 444 had the following to say:- "A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy." 47 In the present case, of course, the problem referred to by the High Court is manifest. The arrangements made by the plaintiff and the deceased contemplated to the knowledge of both parties that the plaintiff's assets, which were only her savings, were to go to her daughters. In the event that the plaintiff retains the fee simple in the property, which is her request to the court, then clearly this would be to the advantage of her daughters in due course as that is still the provision in her will. 48 There are variety of different orders which a court can make and there are many first instance judgments where these are discussed. For example, in Court v Hunt, Young J (unreported) 14 September 1987, he said: "Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge." 49 His Honour then went on to talk about the assumptions one could make about the fact that frequently, people, once they pass fifty-five, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. 50 After talking about the evidence necessary, his Honour went on to say: "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non-capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service, at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow." 51 In dealing with the provisions normally made in respect of widows the Court of Appeal in Golosky & Anor v Golosky, unreported 5 October 1993, summarised them in the following terms: "In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act. Relevantly, these included: (a) Proper respect was to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9, 19; White v Barron and Anor , above, 458; Hunter , above, 576; (b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81. (c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70; (d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA; (e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of the competing claims of testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased. See Re Fulop Deceased (1987) 8 NSWLR 679 (SC); Churton v Christian and Ors (1988) 13 NSWLR 241 (CA), 252." 52 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to Wellman and passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v Elliott, unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. 53 There is no doubt that there has been a long and happy marriage in this case. The plaintiff and the deceased were married for 24 years. So far as assistance with building the assets are concerned, the house which was the subject of the application, was one which had been acquired by the deceased during his first marriage. During that marriage an old building was removed and a fresh building erected in the 1960s. This was with the benefit of a War Service Homes loan which was repaid in later years at a rate of $26 per month. The loan itself was finally discharged in 1991 when the deceased paid the final $4,000 due on the loan. To an extent there has been a contribution by the plaintiff as she and the defendant both worked up until 1981 and the plaintiff contributed her wages partly towards meeting the expenses of the household. There was no suggestion that she paid any mortgage instalment but there was the use of her salary to this extent. 54 At the heart of the concern of the children of the first marriage is the fact that the house was substantially provided by their parents rather than the deceased and his second wife. However, one has to have regard to community expectations of what would be appropriate for what is, in this case, a long and happy relationship with some assistance towards paying off a loan for a house. The defendant has since the conclusion of the hearing submitted the terms of what it says is an appropriate provision 55 Such terms gave a right of residence in the property or any substituted property which the plaintiff might require for the provision of accommodation in an appropriate Church, Government or private institution provided that any non-refundable capital contribution would not be in excess of 33 percent of the capital lump sum. There is no evidence which suggests that this figure is in line with market practice and it seems a little restrictive. 56 In my view it would have been appropriate in this case for the plaintiff to have received the property outright having regard to the length of her marriage. However as time can not be extended the only order that should be made is that the Summons is dismissed and I so order. 57 I will hear argument as to costs. ********