New South Wales Supreme Court CITATION : EDWARDS v EDWARDS [2000] NSWSC 1210 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2036 of 2000 HEARING DATE(S) : 08/12/2000 JUDGMENT DATE : 8 December 2000 PARTIES : Mark Thomas Edwards v Patricia Edwards (Estate of Thomas William Edwards) JUDGMENT OF : Master Macready at 1 COUNSEL : Mr M. Thangaraj for plaintiff Mr R.W. Cameron for defendant SOLICITORS : Aubrey Brown Partners, Toukley, NSW for plaintiff Adrian & Fellows for defendant CATCHWORDS : Family Provision. Application by a daughter suffering from multiple sclerosis. Small estate part of which had been expended by the defendant widow withno adequate explanation. Order for a conditional legacy made. CASES CITED : Singer v Berghouse (1994) 181 CLR; Elliott v Elliott Court of Appeal 24.4.86. DECISION : Paragraphs 15 -17 - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY FRIDAY 8 DECEMBER 2000 2036/1998 MARK THOMAS EDWARDS & 2 ORS v PATRICIA EDWARDS - ESTATE OF THOMAS WILLIAM EDWARDS JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Thomas William Edwards deceased who died on the 16th of October 1996 aged 62 years. The deceased was survived by his children from his first marriage and also by his second wife. There are three plaintiffs in the present action, his two sons and his daughter. The sons have decided not to proceed with the application and it is agreed that their proceedings can be dismissed. The matter has continued on the claim of his daughter, Robyn Faye Bourke. 2 The deceased's will was made on the 22nd of May 1993. By his will he left the whole of his estate to his second wife Patricia Edwards who is the defendant, she being appointed the executor. The estate is a small one and basically it consisted of the deceased's half share in a property at 71 McLeans Point Road, Sanctuary Point. There was a Mazda car of virtually no value, small amounts of cash and some coin and stamp collections and a Matchbox car collection. Those minor matters were passed over to the grandchildren. There was a mortgage of some $62,000 on the property and the property was owned by the deceased and his second wife Patricia Edward in equal shares. 3 There are costs that have been incurred in these proceedings and the plaintiff's costs are estimated at $15,000 and the defendant's at some $8,000. Apart from the assets in the estate to which I have referred there was also a payment out to the defendant under the State Superannuation Scheme following upon the death of the deceased of some $254,737. 4 I will briefly deal with some of the chronology. The deceased was born in 1934 and he had three children. On the 18th of February 1954 the deceased was married for the first time. The plaintiff Robyn was born on the 12th of November 1956, the son Mark on the 13th of October 1959 and the son Scott on the 24th of November 1966. The plaintiff Robyn married in 1975. The deceased separated from his first wife in 1981 and in due course he was divorced in the following year. The plaintiff's first son was also born in the following year in 1982. On the 21st of July 1982 the deceased married the defendant. In August 1982 the plaintiff was diagnosed with multiple sclerosis and that has continued to afflict her for the rest of her life. The deceased himself suffered a heart attack in 1983. It was at this stage that the deceased and the defendant moved to the Sanctuary Point property which at that stage was partially completed. The defendant bought the deceased's sister's half interest in the property using her own funds of some $18,000. They continued to live there thereafter. The date of death, as I have mentioned, was 16 October 1996. Probate was granted in 1997 and the summons was filed on the 15th of April 1998. 5 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 the 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." 6 It is necessary as directed by the High Court to look at the plaintiff's situation and in particular her financial situation. She has a property situated at Coorumbung Road, Dora Creek worth about $160,000, an old Toyota Corolla, personal effects and some very small savings. She has a mortgage over her property of just under $13,000 and other minor liabilities. Her situation is the subject of medical evidence and, as I have mentioned, she contracted multiple sclerosis in 1982. That has progressed to the point where it is necessary for her to have the use of a wheelchair. She is starting to suffer from decreasing functions in her upper limbs and she has other problems which are associated with that disease. It is a definite possibility that her condition could deteriorate further. 7 The deceased had contact with his daughter. It was not that frequent, but was a contact that continued and up until the death of the deceased. The plaintiff was planning to contact the deceased and be visited by him shortly before he died. She saw him on occasions when he was ill in hospital. There is nothing in the somewhat sparse evidence which would suggest to me that it was other than an ordinary relationship with contact between the plaintiff and the deceased. Obviously there were difficulties with the distance between them. 8 The other person having a claim on the bounty of the deceased is obviously his wife, the defendant. She has given evidence of her current financial position. She did, as I have indicated, receive in 1996 some $254,000-odd and her position is that she has the house at 71 McLeans Point Road, Sanctuary Point worth $160,000. She now has a newer car, a Toyota Corona, worth $12,000. She has furniture and personal items of some $20,000. There is a liability of $56,000 which she has taken on with her daughter Linda and her husband involving a third party mortgage over the property to the Permanent Trustee. This mortgage was taken out on the 4th of August 2000, the defendant being well aware of the existence of these proceedings at that time. It is to secure a loan to enable the daughter and her husband to operate a food business and, according to her, subsidise her living expenses. 9 The plaintiff only has the ability to make a claim on the estate if she has been left without adequate and proper provision for her maintenance, education or advancement in life. No provision has been made and the plaintiff suggests that an appropriate provision would comprise three elements; firstly, $5,000 to buy an electric wheelchair; secondly, $12,975 to extinguish the mortgage on her house in order to help her current outgoings; and, also, $20,000 to use for assistance to pay for a carer. The figure has been deliberately restricted by her to suggest only $20,000 because of the size of the estate. The other thing to note about the plaintiff is that she has a pension and that she would be entitled to receive when she turns 60 years of age $170,000. 10 Widow's claims are frequently the subject of applications in this court. The Court of Appeal in Goloski v Goloski (unreported 5 October 1993) has referred to formulations of the standard to be expected in respect to a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said: "Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up an maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life may bring." 11 The situation in the present case is, of course, that the marriage between the defendant and the deceased was one of 17 years. It is one where the defendant obviously looked after the deceased in his illness and his later years and that fact has to be realised. It is also important to realise in this case that it was the defendant herself who paid for the half share of the property which is now her only home. 12 The defendant, as I have mentioned, received the sum of $254,000. She spent $68,000 of it in paying off the mortgage on the home. The home itself was incomplete. 50,000 was spent on completing the home and obtaining a car and furniture. She paid a debt of the deceased's of some $12,000. These figures total $130,000. This leaves a balance which one would normally expect her to have, of some $124,000. The only explanation that the defendant gave as to where this money has disappeared to was to say that she had been living on it. Her sworn evidence about her expenses indicates that her expenses are about $14,000 per annum and her income about $10,000. In other words, her sworn evidence is that her extra living expenses would count for a very small part of this sum. 13 If I were looking at the claim and the defendant had a substantial part of that sum available to her it would be one where I might be minded to order a small legacy. That would be appropriate in that case because the plaintiff herself has very special needs which have to be recognised and which should have been recognised by the deceased. He was well aware of her medical problem and some provision should have been made. However, in the estate in its present condition, the money having been spent without explanation, it seems to me that it would be difficult to make an outright order for this amount. It seems to me that there might be some purpose in giving a conditional legacy. 14 The plaintiff is 44 years old and she will not receive any sum for some 16 years which would assist her. The defendant is, of course, older than the plaintiff and although she has on the tables a longer life expectancy it may well be that she may die before the plaintiff. If that were to happen, and one doesn't like to foretell or predicate things on these matters, then there could still be a situation where the plaintiff could benefit from some small legacy in the time between the death of the defendant and her having access to funds. 15 In the circumstances, what I propose to do is grant a conditional legacy to the plaintiff. I order that the plaintiff receive a legacy of $15,000 conditional upon the following two matters: (1) The plaintiff outliving the defendant; and (2) The defendant dying prior to 12 November 2016. 16 So far as costs are concerned, given the state of the matter and the fact that the matter has been waiting for quite some time, it would be inappropriate to make an order outright for the plaintiff's costs. I would will make a conditional order that the plaintiff's costs be paid out of the estate in the event that the legacy becomes unconditional. The defendant's costs can be paid or retained out of the estate of the deceased. 17 Given the concession that was made before, I will dismiss the claims brought by Mark Thomas Edwards and Scott Edwards. In respect of the claims of the two sons, I order that these two plaintiffs pay the defendant's costs. I have heard further submissions on costs and in my view those claims should never have been brought and I will not alter the order I have made. ------ Last Modified: 12/18/2000 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. 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