New South Wales Supreme Court CITATION : SLATTERY v SLATTERY [2000] NSWSC 586 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5228/1997 HEARING DATE(S) : 08/06/2000 and 09/06/2000 JUDGMENT DATE : 13 June 2000 PARTIES : VICKI SLATTERY v MARY GARDNER SLATTERY JUDGMENT OF : Master Macready at 1 COUNSEL : M. Gorrick (P) R.H. Weinstein (D) SOLICITORS : John Hertz & Associates (P) Michael Lew & Associates (D) CATCHWORDS : Family Provision - Application by a daughter. - Whole of estate passes to widow. Estate not large. - Application refused. - No matter of principle. Singer v Berghouse (1994) 181 CLR 201; CASES CITED : Golosky v Golosky (unreported 5 Oct 1993); Elliott v Elliott (unreported 29 April 1986.) DECISION : Paragraphs 48 and 51 - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY TUESDAY 13 JUNE 2000 5228/97 - VICKI SLATTERY v MARY GARDNER SLATTERY JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late David John Slattery who died on 29 July 1997 aged sixty years. The deceased was survived by his first wife and his daughter of his first marriage, the plaintiff. He was also survived by the defendant, his second wife. 2 The deceased made his last Will on 28 May 1993, in which he appointed the defendant executor and left her the whole of his estate. He also left another document in which he recorded his testamentary intentions, to which I will return. 3 The estate consisted of superannuation of $4,050 and a Ford Fairlane of $10,000, a total of $14,050. There were credit card debts of some $6,236 and funeral expenses of $1,932, a total of $8,168. These debts have been paid by the defendant. 4 There was property held by the deceased and the defendant as joint tenants. They have both been transferred to the defendant. The properties and their present values are as follows: 6 Simone Crescent, Casula $250,000 12 Wentworth Avenue, Doyalson $120,000 _______ Total $370,000 LESS mortgage outstanding on Doyalson $ 51,394 _______ Balance $318,606 _______ 5 The estimate of $120,000 for Doyalson was made by the defendant. She gave evidence in the witness box that an agent had told her they might get $135,000 for Doyalson. Having looked at one of the exhibits, which is a letter written after the property was put on the market on 1 June 2000, it may be that that was the asking price which was referred to in the letter as being "a good starting point (I'd love to see us come close to getting it)". It seems to me that probably the area of price will be somewhere between $120,000 and $135,000. I have not had the benefit of a proper valuation of the property. 6 The costs that have been incurred in this case are, like all these matters, fairly substantial when one looks at the size of the estate. The matter went for two days and the defendant's costs would be $21,372; the plaintiff's $19,640, a total of $41,012. 7 The defendant is living in the home at Casula and intends to continue to live there. The Ford Fairlane has been sold by the defendant and she now has purchased another car. There are not enough assets in the estate to even meet the defendant's costs. 8 It is useful firstly to deal with some of the history of the family in order to understand the matter. The deceased was born in 1937, as was the defendant. In 1956 the deceased married his first wife, who was the mother of the plaintiff. The plaintiff herself was born on 28 April 1958. The marriage only lasted a short time and the deceased and the plaintiff's mother separated in 1961. The plaintiff and her mother lived with members of the mother's family separately from the deceased. They were divorced in 1962. 9 In 1963 the plaintiff's mother remarried. Also in that year the deceased and the defendant commenced living together in a de facto relationship. There was still contact between the deceased and his daughter and they would seem to go on weekly outings. 10 In the mid 1960s there was the death of the deceased's sister. As a result of some compensation, there was the purchase of a Housing Commission house in Chester Hill commenced by the deceased. The deceased and the defendant moved into that property and lived in it with the deceased's mother. 11 The contact between the plaintiff and the deceased continued in the '60s and early '70s, he making payments for maintenance to her mother and spending time with the plaintiff. She was at Maroubra Bay High School between 1970 and 1974 and received regular pocket money of $20-30 per week from the deceased. After she left school in 1974 she became a heroin user and adopted a lifestyle which was common with people suffering from drug addiction in respect of that drug. 12 The deceased would frequently travel the streets looking for his daughter when she disappeared. In 1976 he arranged for the plaintiff to go to Hobart to stay with relatives along with her grandmother and assisted her in that purpose. 13 The plaintiff came back from Hobart some time after 1977 but unfortunately resumed her contact with drugs in Sydney. She, in the early 1980s, commenced a de facto relationship with a person called Tony Gestro and her first child Anthony was born on 7 February 1983. Contact between the plaintiff and the deceased still continued, he helping her frequently with funds when she did not have money for food and bills as a result of her addiction. 14 In 1987 Tony Gestro died of an overdose of drugs. At that time the plaintiff was pregnant with their second child. By this time the plaintiff herself had managed to come off heroin and was stabilised on a permanent methadone program. Her second son Mark was born on 28 October 1987. Thereafter they moved into a Housing Commission flat in Maroubra. 15 The deceased meanwhile with the defendant had purchased a property at 6 Simone Crescent, Casula, the one that is still in the estate. It is a three-bedroom brick and tile home with a granny flat which was used by the grandmother at that stage when they moved in in 1988. The grandmother died a year later. 16 Around about this time, the contact between the plaintiff, her children and the deceased continued. By 1991 the plaintiff got to the stage with her drug addiction whereby she could give up methadone and since that time the evidence showed that she has been drug free. In 1992 she then entered into another de facto relationship with the brother of her former partner, Ron Gestro. 17 In either 1991 or 1992 the deceased and the defendant separated. The defendant moved to a flat in Toukley on the Central Coast near where her sister and brother were residing. In about 1993 the deceased and the defendant bought a vacant block of land at Doyalson on the Central Coast and a three-bedroom brick and tile house was built on that land with a loan from the Commonwealth Bank. 18 Although the deceased continued to have contact with the plaintiff this became very difficult because between 1995 and 1997 the plaintiff was suffering from an alcohol problem which no doubt was as a result of the problems which her then de facto had and that clearly affected her. 19 On 3 March 1993 the plaintiff had a daughter Lisa Gestro and she continued in the relationship, however, her partner not long thereafter died as a result of the effects of alcohol. 20 During this time, the early 1990s, and it was probably the beginning of 1991, the deceased formed a relationship with a woman called Linda Tanaka, who gave evidence in these proceedings. It is clear that they had a relationship which was a sexual one, between 1991 and 1994. Miss Tanaka had a daughter and the deceased assisted her with the upbringing of that daughter although they had not been living permanently together. Ultimately the relationship floundered and it ceased when he refused to marry her. During the course of this relationship one has the Will which was made on 28 May 1993. 21 The deceased died on 29 July 1997. Proceedings were commenced on 22 December 1997 and the summons was served on 13 February 1998. Probate was granted to the defendant in November 1998 and at the same time the defendant moved back to Casula from Doyalson. This year the plaintiff herself moved into a three-bedroom Housing Commission flat in Pagewood. 22 I have earlier indicated the small extent of the estate. It is obvious that it would be necessary for the Court to designate property as notional estate if an order is to be made in these proceedings. Under s 23 the Court may, if it is satisfied that an order for provision ought to be made on the application and that there was a prescribed transaction, designate property as notional estate. Here the relevant prescribed transaction is the failure to sever the joint tenancy and accordingly it is necessary to decide whether or not it is appropriate to make an order. 23 In applications under the Family Provisions Act the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a Court must take. At p 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, among 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." 24 As directed by the High Court I turn to the plaintiff's situation. She is single, has three children aged seven, twelve and seventeen. She is forty-two years of age and survives on a pension of $294 per week all of which, of course, is used in her expenses of supporting her children and rental accommodation. She has no work training and substantially no work history since shortly after she left school. She is still looking after her children, one of whom is only seven. 25 She has no assets of any substance. The only things that she has are some minimal amounts of furniture which are very old and not even sufficient for her and her children to manage on the property. 26 It is necessary to look at the relationship between the plaintiff and the deceased. In this respect it is perfectly clear that the deceased has supported her throughout almost the whole of her life. This involved not only long support but quite a substantial amount of financial assistance. The extent to which she was dependent upon him can be gauged by the terms of the other document in which the deceased expressed his testamentary wishes. That document is not dated but talks of a period of eighteen months elapsing since the separation of the deceased and the defendant. That separation could not have occurred as late as 1992, which the defendant put it at because of the relationship with Miss Tanaka. Miss Tanaka's evidence seemed to me more credible as to the timing of when the relationship commenced, particularly as she could fix it to dates of her children's birth and other matters. 27 The likelihood is that the deceased and the defendant separated some time towards the end of 1991. This would put this document at either late 1992 or early 1993. The terms of it are as follows:- "Last will & Testament of David John Slattery. In the event of my death & providing my wife Mary is still alive - I bequeath to my darling Mary all my worldly possessions - all money, property motor vehicles and personal effects. I would insist however that Mary upon the processing of this will give to my daughter a cash gift of $5000 cash to provide Vicki with some temporary relief from her ever present financial problems. I would like it known to all those interested in this will that I have loved Mary since the day I first met her and my love has grown stronger with each passing day - Mary is a lovely caring lady - & but for her love and understanding my life would have been wasted. However my love of the fast life of racing drinking & socialising has kept us apart for the past 18 months which has taken its toll on both of us - which I hope that Mary will find it in her heart to forgive me. Mary - I love you & if there is a heaven - I'll be waiting for you." 28 Apart from the love which the document expresses towards the defendant, the second paragraph clearly contains a recognition by the deceased of the need for his daughter to have provision of some $5,000 to help her over her financial problems. It merely reflected the state of the relationship between the plaintiff and the deceased after that time. It hardly needs be said that the plaintiff herself has made no contributions to build up the estate of the deceased although clearly the deceased enjoyed her companionship and the company of the children of the plaintiff. 29 So far as the way in which the plaintiff has been left without adequate and proper provision for her maintenance, education and advancement in life, there are a number of issues which stand out. First, there is the furniture which is necessary for her to complete the furnishing of her home. This includes basics such as a new fridge totalling $9,986. This clearly is a self-evident need. She is not on available bus lines and needs a car to transport her children and obviously if she could have a car it would cost approximately $25,000. Recently life has been so difficult that she has had to take one of her sons out of school. He was at the local Catholic school. She would like to be able to spend twenty dollars a week during term time to have her son back in the school and that would cost some $5,040 for a period of six years. Obviously the plaintiff is going to have difficulties with three children to raise. Some fund for emergencies such as in the area of $10,000 would be appropriate. This indicates needs of at least $49,930. 30 It is necessary to consider others who have a claim on the bounty of the deceased. No claim has been made by the first wife of the deceased, she having been given notice of the proceedings. Indeed, she gave evidence in the present matter. 31 The only other person is the defendant. She is single, sixty-two years old. Although she has a son from many years ago he is not dependent. Her assets consist of two joint properties now transferred in her name, to which I have referred before. She has a Holden Commodore recently bought new for $37,000 and is probably worth about $32,000. She owes her sister $26,840 for funds advanced to her by her sister both for the purchase of the car, she having traded in her own car, and also support from time to time as she has been living a little bit beyond her means. That amount is not repayable by the defendant unless she comes into funds. She has no superannuation and is now living on a pension of $165 per week and the rent from Doyalson of $175 per week. This totals $340 and her expenses exceed these by at least $120 per week. Those expenses include, of course, repayments of the loan on Doyalson of $125 per week and rates and taxes. 32 So far as the relationship between the defendant and the deceased is concerned it is clear that they commenced a de facto relationship in 1963 and lived together thereafter. There were a few days' separation in 1980 as a result of an argument at home involving the deceased's mother. 33 The defendant and the deceased married on 12 September 1984. They separated in 1991, as I have earlier found, and the defendant went to Toukley and lived in a number of rented places until Doyalson was completed. According to the defendant there was contact by phone and also visits. The extent of these visits are disputed in the evidence but occasionally the deceased would go to Doyalson and it is difficult on the evidence to resolve whether or not there were any substantial visits by the defendant to Casula. 34 It is important to note that although there was this separation one has the important documents in this period, one was the document which I have quoted above in which the deceased spoke of his love for the defendant and gave her credit for the help she had given him. He also took responsibility for the parties being apart. One also then has the Will made somewhat later in which the whole of the estate was left to the defendant. Clearly there was still a strong bond of affection between the deceased and the defendant. The fact that the defendant remained in love with the deceased is not in doubt. It was obvious from the way she gave her evidence in the witness box. The only reason for the separation seems to have been the deceased's conduct, which mainly involved excessive drinking. 35 By 1997 the deceased was ill, went to hospital and it is notable that he went to hospital in Gosford which is near where the defendant lived. She was with him daily for some period of time until he died. It is perfectly plain, of course, that the parties did not resume cohabitation between 1991 and 1997, when the deceased died but what one has is, firstly, a twenty-eight year relationship where the parties had lived together and then six years when there has been contact thereafter. In that period the deceased recognised the help provided by the defendant. There has never been any property settlement between the parties and although it was suggested that there might be a de facto property settlement given the erection of the property at Doyalson, there is no evidence to suggest that that is what happened. 36 It is necessary of course to have regard to the contributions to the estate. In this respect, one does not have a substantial amount of evidence. Evidence has been given of the actual wages that the parties earned, however the details and employment history are set out by the defendant. She says that at the time of cohabitation neither she nor the deceased had any substantial assets. She worked full-time as a barmaid at the Kogarah Hotel and the Rockdale Hotel for about ten years. She then worked as a shop assistant at Grace Bros from 1969 to 1981. She then became a cook at Cabramatta Golf Course on a part-time basis for three years, then cooked at Narellan Golf Course for five years on a part-time basis. Thereafter she worked as a shop assistant at Bonnyrigg for two years and then as a part-time cleaner for Westminster Homes until 29 July 1997. She says that she applied her income to day to day expenses of the relationship and the purchase of the properties. 37 The defendant for his part was a manager at Freight Bases Container Depot at Villawood for eight years. He was then sick and off work for three years with blood pressure and other problems. He was then a counter assistant at the Narellan Golf Club until he suffered a stroke about six weeks before he died. Accordingly there seems to have been substantial employment both of the defendant and of the deceased during this period but notably the deceased was off work for some three years. 38 The parties did purchase a number of properties. The first was in 1965 at 39 Merle Street, Chester Hill. That was a purchase from the Housing Commission, no doubt under a times purchase contract. They lived there until 1978 but eventually sold it in 1988 for $123,950. They moved out for the deceased's mother. 3 Phoenix Street, Casula was purchased in 1978 for approximately $52,000. The defendant gave evidence of contributing $20,000 towards the purchase price from a compensation payout as a result of a motor vehicle accident. That property was sold for $127,000 in 1988 and Simone Crescent, Casula was purchased for $138,000. The parties then moved into that property. 39 In 1993 Doyalson, as I have mentioned, was purchased for the sum of $40,000. A house was built on it with the benefit of an advance from the bank of $63,000. As I have mentioned, there is now some $51,000 owing on that mortgage. 40 Clearly what has happened is that both parties have contributed their wages. The defendant has contributed $20,000 and there does not seem to be any evidence of the deceased having a capital sum. The only thing he had was an amount received from his mother's estate of some $10,000 in 1989. Clearly there has been substantial contribution by the defendant to the properties which are now in her name. 41 One of course then has to consider the exercise which is before the Court and balance the various competing claims. The Court can only make an order if the plaintiff has been left without adequate and proper provision for her maintenance, advancement and education in life. Clearly she has been so left and clearly she has what might be described as desperate needs for help. However, the sad thing about it is that the other claim on the estate is the claim of the deceased's widow. Provisions normally made in respect of widows have been set out in many cases and recently the President of 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 at 19; and White v Barron & 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 & Ors (1988) 13 NSWLR 241 (CA), 252." 42 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. The Court also accepted that she should have sufficient income to enable her to live in a reasonable degree of comfort and free from any financial worry. 43 The defendant is now living in Casula. It was the home of the defendant and the deceased for some three years before separation. She came back there, according to her, because she wanted to bring her brother back to the house so that he could have the benefit of the granny flat. He stayed there some months but ultimately had to go into a nursing home because his problems with Korsakoff's Syndrome required more detailed treatment. It was suggested that this move was prompted by the Court case which had been brought by the plaintiff and that she was trying to place herself in a position where she would have the benefit of residing in the more expensive of the two houses left in the estate. I myself do not accept this. The defendant, I think, did not have that intention. She came back to Sydney for a good reason and there is no reason why she should not wish to enjoy the benefit of the modest home which she has at Casula. She has expressed the view that she wishes to stay there and I accept that. 44 This is particularly so because the home itself is worth somewhat more than the place at Doyalson and is a mechanism whereby she could provide some fund for the future. In fact, she had taken steps before the hearing of this case to put Doyalson on the market. If it were sold there for $125,000 one would expect to receive back about $120,000 after agency expenses. There are costs of some $22,000 to be paid and the mortgage of $51,000 which also has to be repaid. That leaves out of Doyalson the sum of $47,000 left over in cash. 45 What she would be left with then is the house at Casula, the pension and that small sum of money to provide for contingencies and also to assist her with her income. She is entitled to have that in accordance with the principles that I have set out above. 46 Even if one made a modest legacy in favour of the plaintiff of some $10,000, costs would impact upon that and there would be some $20,000 payable by way of costs. Effectively a large part of the small cash sum would be dissipated. Sadly this is one of those cases where the estate is not large enough to accommodate all the claims on the testator's bounty and I say this having come to the view that I think it is appropriate that the defendant be allowed to continue her occupation in the home at Casula. 47 This is particularly sad for the plaintiff. She has survived a terrible life and has come out the other side with three children and she has desperate needs. The defendant did not rule out the possibility that she will still pay the $5,000 to the plaintiff. If she can see it in her heart to do so she clearly will be benefiting someone who has desperate needs. It would be a great act of charity on her part after having been put through the trauma of these proceedings by the plaintiff and I am sure that the plaintiff and others would appreciate it, if she were to be that generous. However, I cannot make that order. 48 Accordingly I order that the summons be dismissed. The defendant's costs are to be paid or retained out of the estate of the deceased on an indemnity basis. 49 So far as the plaintiff's costs are concerned, it seems to me that the plaintiff has had a life when she has had the continued support of the deceased. That was not unreasonable, particularly having regard to her problems and her illnesses and although she has recently moved herself beyond those problems she no doubt, I think, probably realistically having regard to the history, thought that some provision should have been made for her. In these circumstances I am minded not to make an order for costs against the plaintiff but I will hear submissions. 50 I have heard further submissions in respect of costs in respect of the plaintiff's claim. Although there are the provisions of the testamentary document it was not made available until later. The fact is the proceedings were brought and they have been unsuccessful. Accordingly in the circumstances I do not think it is appropriate that the plaintiff's costs come out of the estate, particularly as that will impact on the defendant's position. 51 In the circumstances I make no order as to the plaintiff's costs to the intent that she bear her own costs. Last Modified: 09/26/2000 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.