Lewis-Boardman v Adams & anor [2000] NSWSC 1050

New South Wales Supreme Court

CITATION : Lewis-Boardman v Adams & anor [2000] NSWSC 1050 FILE NUMBER(S) : SC 2483/00 HEARING DATE(S) : 24, 25 October 2000 JUDGMENT DATE : 15 November 2000

PARTIES : John Geoffrey Lewis-Boardman (Plaintiff) Brian Adams, Susan Louise Adams (Defendants) JUDGMENT OF : Master McLaughlin

COUNSEL : M.S. Willmott (Plaintiff) R. Weinstein (Defendants) SOLICITORS : Eric Butler Solicitors (Plaintiff) Curtis Gant Irving (Defendants) CATCHWORDS : Family Provision - Claim by widower - Plaintiff given a right of residence in matrimonial home - Plaintiff, aged 83, is frail and infirm - Plaintiff can no longer exercise right of residence - Defendants do not dispute that Plaintiff is entitled to an order for provision for his maintenance - Whether that order for provision should enable Plaintiff to remain in a home environment with his son and daughter-in-law, or whether it should merely be sufficient to enable him to spend his declining years in a nursing home - Strict arithmetical calculations are neither appropriate nor desirable to the circumstances of this case LEGISLATION CITED : Family Provision Act 1982 DECISION : See paragraph 52

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 15 November 2000

2483/00 JOHN GEOFFREY LEWIS-BOARDMAN -v- BRIAN ERNEST ADAMS and Anor. JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 9 May 2000 John Geoffery Lewis-Boardman, the Plaintiff, claims an order for provision for his maintenance, education and advancement in life out of the estate and/or the notional estate of his late wife Kathleen Nellie Lewis-Boardman (to whom I shall refer as "the Deceased"). 3 The Deceased died, aged 80, on 25 August 1999. She left a will dated 12 April 1999, probate whereof was on 21 October 1999 granted to Brian Ernest Adams and Susan Louise Adams, the executors named in such will (who are the Defendants to the present proceedings). 4 The Plaintiff (who was born on 9 June 1917, and is presently aged 83) married the Deceased on 9 October 1983. They had been living together since 1982, and remained married to the death of the Deceased some 17 years later. The Deceased had previously been married. The first named Defendant is her son, and the second named Defendant is her grand-daughter (being the daughter of the first named Defendant). The Plainitff also had previously been married. 5 The substantial asset in the estate of the Deceased is a house property situate at and known as 284-286 Jefferey Road, Chittaway Point, which had been the matrimonial home of the Plaintiff and the Deceased throughout the period of their marriage. That property had been acquired by the Deceased and her first husband in 1940, and the Deceased had resided therein since 1959. 6 It was not disputed that the present value of the Chittaway Point property was $670,000. 7 By her will the Deceased gave her motor vehicle to the Plaintiff and gave a legacy of $10,000 to each of the two sons of the Plaintiff. The will provided that the Plaintiff should have a right to reside in the house property at Chittaway Point "for so long as he wishes (he not to pay any rent but he to pay the rates and insurance premiums and to keep the home in reasonable repair)". Subject to that right of residency the Deceased gave the house property and the residue of her estate to be divided equally among such of four named nieces and nephews as might survive her. 8 Apart from the house property and a 1984 Holden Commodore motor vehicle (which was transferred to the Plaintiff and appears to have been subsequently sold by him for $6,000) the only assets in the estate of the Deceased consisted of the contents of the house property (to which a value of $15,000 was ascribed) and moneys on deposit with the St. George Bank, totalling $12,875. 9 The two specific legacies of $10,000 each to the two sons of the Plaintiff have been paid. Since the moneys on deposit were not sufficient to meet that payment of $20,000, the shortfall was met by contributions from each of the residuary beneficiaries. 10 In considering the assets available to meet the claim of the Plaintiff, it must be recognised that the net value of the estate will be reduced in consequence of the institution of the present proceedings. The Defendants will, whatever the outcome, be entitled to their costs from the estate, since they have an obligation to uphold the terms of the will. Those costs (excluding GST) are estimated to total about $32,000. In the event that he be successful in his claim, the Plaintiff also will be entitled to an order for his costs, which are estimated to be $45,000. 11 The Deceased is frail and infirm. He is confined to a wheelchair. He is alcohol dependent. Details of his physical problems, and the medical evidence in regard thereto, will be set forth later in this judgment. 12 The Plaintiff continued to reside in the house property until December 1999. Since that time he has resided with his son John Jeffrey Lewis-Boardman and his son's de facto wife Marie Parnell at their residence at Dooralong (which is located on the Central Coast of New South Wales). 13 The Plaintiff as the widower of the Deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such he has the standing to bring the present proceedings. He is the only eligible person in relation to the Deceased. 14 The provisions of the will of the Deceased in favour of the Plaintiff were described by Counsel for the Plaintiff as being "inflexible, impractical and inadequate". I am in agreement with that description. 15 It was not disputed by the Defendants that the Plaintiff was entitled to an order for provision for his maintenance out of the estate of the Deceased. 16 Essentially, however, the matter in dispute between the parties was the location where the Plaintiff should spend his declining years. It was the express desire of the Plaintiff that he should remain in residence with his son and his de facto daughter-in-law. Evidence was placed before the Court and submissions were made as to how the needs of the Plaintiff whilst in residence with his son and daughter-in-law should be met. 17 On behalf of the Defendant it was submitted that the Plaintiff should reside in a nursing home for the rest of his life. 18 It is quite apparent that the Plaintiff cannot look after himself. He must have care. He is receiving excellent care in the home of his son and daughter-in-law. He wishes to remain in that home. 19 The assets of the Plaintiff consist of an amount in a Westpac growth fund of about $11,000, together with a very small amount (less than $100) in a Westpac cheque account. The Plaintiff's present income is a total of $465.58 a fortnight (made up of a service pension from the Department of Veterans' Affairs ($394.10), a part disability entitlement ($65.88), and a pharmaceutical provision ($5.60)). 20 It was necessary for Miss Parnell, who had previously been in full-time employment, to give up that employment in December 1999 in order to care for the Plaintiff on a full-time basis. In consequence, a financial arrangement was made between the Plaintiff and Miss Parnell, the effect of which is that the Plaintiff allows Miss Parnell to avail herself of the Plaintiff's assets in order to meet Miss Parnell's personal liabilities totalling about $325 a week, together with personal expenses. She said that she required to have between $500-$600 a week. 21 Miss Parnell said that she spent about $130 a week on purchasing special items, in particular delicacies of a gastronomical nature, for the Plaintiff. Considerable evidence was devoted to the drinking habits of the Plaintiff, and the quantity of alcohol (and the cost thereof) consumed by him, as well as to his cigarette smoking habits. 22 Evidence was given by Antoinette Grace Fahey, the Director of Nursing for Fahey's Nursing Service of Wyong, which service provides a district nurse on a daily basis, to attend to the Plaintiff's personal needs. Miss Fahey set forth evidence of the nature described as a "Life Care Plan" in respect to the Plaintiff, with details of the costing for the nursing and other care which, in the expert opinion of Miss Fahey, was required for the Plaintiff. 23 The approach of the legal representatives of the Plaintiff was that, in order to ensure that the Plaintiff could remain in residence with his son (who holds his power of attorney) and daughter-in-law for the remainder of his life, he should receive from the estate of the Deceased a lump sum which would represent the capitalisation of certain recurring needs over a period of 5.5 years (that being the life expectancy of a man aged 83, in accordance with the Australian Life Tables), together with certain capital non-recurring items. Details of the cost of full-time nursing for the Plaintiff were set forth in the report of Miss Fahey to which I have already referred, together with details of the cost of periods of respite care recommended by her for the Plaintiff's carers (being his son and daughter-in-law). 24 In accordance with the original calculations contained in a schedule prepared on behalf of the Plaintiff, the capitalisation of those periodic payments at 5 per cent over a period of 5.5 years would total $535,556. However, that total figure was, during the course of submissions somewhat reduced, to a total (in round figures) of $322,000. 25 It seems to me, however, that it is inappropriate and, in any event, undesirable, that such a strictly mathematical approach be adopted in respect to the quantification of the claim of the Plaintiff. 26 It must be appreciated, firstly, that the Australian Life Tables which disclose that the life expectancy of a man presently aged 83 is 5.5 years merely indicate that an average of Australian males presently aged 83 years will live for a further 5.5 years. That figure does not in any way address itself to the particular circumstances of the Plaintiff. 27 The Plaintiff, as I have already observed, is confined to a wheelchair; he is alcohol dependent, is incontinent, is largely dependent upon other persons. Affidavit evidence from his general medical practitioner, Dr Nicholas Smith (who was not cross-examined) discloses that the Plaintiff suffers from recurrent strokes due to hypertension, alcohol dependency, anxiety and depression, aortic stenosis, chronic airways disease. Dr Smith, who has been treating the Plaintiff since at least 14 November 1984, also states that the Plaintiff has had a history of a quiescent duodenal ulcer. Further, that he suffers from lung disease attributable to many years of smoking, as well as liver disease attributable to many years of an over indulgence in alcohol consumption. In January 1999 the Plaintiff developed vertigo, which Dr Smith described as being probably secondary to cerebrovascular disease. Whilst living alone in the house property the Plaintiff had a number of falls for which he was admitted to hospital. 28 In his report of 21 June 2000 Dr Smith expresses his conclusions as follows, In summary, Mr Lewis-Boardman is an elderly frail gentleman who may die tomorrow or live for several years. He appears relatively content with his present situation but requires care of a very intensive nature. Were it not for the support he is receiving at present he would definitely require nursing home care. For this to happen I feel it would be extremely detrimental to his health both physically and mentally. It may well be that his health declines rapidly in his present circumstances resulting in a need for residential care, but I am not in a position to predict such a scenario. I feel Mr Lewis-Boardman is at present receiving excellent care and attention and that this should continue for as long as is possible. 29 Not only does it seem to me that the period of 5.5 years is inappropriate as the life expectancy for Mr Lewis-Boardman, in the light of the conclusions stated by Dr Smith (that the Plaintiff may "die tomorrow or live for several years"), but it also seems to me that the period adopted by the legal advisers of the Plaintiff disregards the fact that it may be necessary for the Plaintiff, in any event, to enter a nursing home before the expiry of 5.5 years. Further, the adoption of such an arithmetical approach as that proposed on behalf of the Plaintiff, in the calculation of the cost of what is described as full-time nursing care, totally disregards the fact that he is at present being looked after by his son and daughter-in-law, who provide considerable care of the nature for which the full-time nursing care by qualified professional staff would be in substitution. 30 If the Plaintiff is to receive the full-time nursing care of the nature described by Miss Fahey, and at the cost set forth in her report, then it seems to me that there should be a significant discount in respect of that cost, in order to reflect the fact that Mr Lewis-Boardman's son and daughter-in-law are performing, in a caring and loving fashion and in a family environment, work for which they do not expect to be remunerated (either by way of respite payments or otherwise, of the nature referred to in Miss Fahey's report). Nevertheless, it is recognised that the Plaintiff is providing his son and daughter-in-law with a degree of financial assistance, reflecting the fact that Miss Parnell has, in order to look after him, been precluded from continuing in full-time employment. 31 But even if (contrary to the view which I have already expressed) the adoption of an arithmetical calculation be deemed appropriate, I have considerable reservations as to the bases of the calculations presented on behalf of the Plaintiffs. 32 Those calculations took an average between the capitalisation figure for eight hours per day and the capitalisation figure for twelve hours per day. Since the Plaintiff is receiving family care of the nature which I have described, I do not consider it appropriate to adopt the higher figure, or a mean between the two figures. A capitalisation of the costs for eight hours a day community nursing care should reflect a period which (in the light of Dr Smith's report) should be no more than three years. In consequence, therefore, a capitalised amount of $169,245 should be adopted. Similarly, for the reason which I have already expressed concerning the family environment in which the Plaintiff is receiving his care, I doubt very much whether an element reflecting respite care of the nature described by Miss Fahey, and of the amount submitted on behalf of the Plaintiff, is appropriate. Nevertheless, even if such a component be adopted, it should (for the reason already stated) be for no more than three years, thus giving a figure of $64,680. 33 Again, the component for cleaning disregards the family environment in which the Plaintiff finds himself. But, in any event, if a capitalisation period of three years be adopted that component will be $8,736. 34 The component under the heading of miscellaneous, includes lunches totalling $50 a week. It was apparent from the evidence of Miss Parnell that those luncheons include the provision of a meal for herself as well as for the Plaintiff. Thus this component should be at the rate of no more than $40 a week. Such a figure capitalised for three years totals $5,824. 35 Even upon the arithmetical approach of the Plaintiff, it seems to me that the present capitalised value of the various component elements submitted by the Plaintiff as being necessary to maintain the Plaintiff in the present home environment, but amending, in the fashion which I have set forth above, the figures relied upon by the Plaintiff and adopting a period of three years (which, in my view, is a more realistic estimate of the period for which the Plaintiff will be able to remain in his present environment) is a total amount of $248,485. 36 The Plaintiff also claims a number of items of a capital nature. Those items include clothing ($1,620), and a reclining chair and other items of furnishing ($3,195). In addition, he seeks a new piano, for which an amount of $7,495 is claimed. The evidence discloses that the Plaintiff derives considerable pleasure and enjoyment from playing the piano. However, the evidence discloses that there is a piano in the residence of the Plaintiff's son and daughter-in-law at the present time, although criticisms have been offered concerning the present condition of that musical instrument. No evidence was placed before the Court as to the cost of appropriate repairs to that instrument. It would appear, however, that there was a piano in the matrimonial home of the Plaintiff and the Deceased. No evidence was placed before the Court concerning the condition of that instrument, or why no attempt has been made to arrange with the Defendants for it to be relocated for the use by the Plaintiff during his lifetime. Neither was there any evidence concerning the cost of hiring such a musical instrument. I do not consider that it is appropriate that the needs of the Plaintiff should be reflected in the acquisition, at a cost to the estate, of a new pianoforte. 37 The final item of capital expenditure which is sought to be included in any order for provision to be made for the maintenance of the Plaintiff is a motor vehicle with wheelchair space, to enable the Plaintiff to be transported in his wheelchair. An amount of $36,290 is claimed for such an item. 38 At the present time the Plaintiff's son and daughter-in-law have two motor vehicles in their household. Miss Parnell drives the Plaintiff in his wheelchair, for his weekly luncheon outings, and for medical appointments. Otherwise, it would appear that the Plaintiff does not go out very often. 39 It is understandable that Miss Parnell desires that the Plaintiff in his wheelchair should be conveyed in a vehicle more appropriate for that purpose. Nevertheless it seems to me to be totally unrealistic and out of all proportion that a brand new motor vehicle should be purchased for the purpose of conveying the Plaintiff in his wheelchair on a relatively small number of occasions. It is obvious that the benefit of such a vehicle, when it is not being used to convey the Plaintiff in his wheelchair, would be with his son and daughter-in-law, unless it be left unused for most of the time. No evidence was placed before the Court concerning the cost of wheelchair taxis for the purposes of conveying the Plaintiff in his wheelchair. I do not consider that this amount for a new motor vehicle with wheelchair space should be included in any award to be made for provision for the Plaintiff. 40 Finally, the Plaintiff claims as a component in any order for provision a lump sum for future contingencies and general amenities, in amount of, say, $50,000. It is appropriate that any order for provision certainly should reflect a component for future contingencies and general amenities. However, the age and lifestyle of the Plaintiff are such that I consider that an amount of $50,000 is excessive. An amount, in my opinion, of $30,000 would be more appropriate. 41 In summary, then, if I were disposed to adopt the arithmetical approach submitted on behalf of the Plaintiff, he should receive from the estate of the Deceased an amount reflecting various periodic payments capitalised at 5 per cent over a period which in my view should be three years. In accordance with the amended calculations which I have set forth herein, the component for community nursing care would total in round figures $169,000; the component for respite care would total in round figures $65,000; the component for cleaning would total $9,000; the component for medication would total $1,500; and the component for miscellaneous items would total in round figures $6,000 (thus giving a total for such capitalised components of $250,500). To that figure should be added capital items for clothing ($1,620), reclining chair and other items of furniture ($3,195), thus giving a further total of $255,315, to which should be added a lump sum for future contingencies and general amenities ($30,000). That would give a final total figure of $285,315. 42 I have already recorded that the Defendants did not dispute that the Plaintiff was entitled to an order for his provision out of the estate of the Deceased. It was, however, submitted on behalf of the Defendants that it was appropriate that the Plaintiff should spend the rest of his life in a nursing home, rather than in the residence of his son and daughter-in-law. 43 Evidence was placed before the Court on behalf of the Defendants concerning the Glenmere Nursing Centre at Kanwal on the Central Coast. Documentary material concerning that establishment is annexed to the affidavit of Susan Louise Adams, the second named Defendant, sworn 23 October 2000. It was submitted that in that establishment the Plaintiff would be enabled to continue his lifelong habits of drinking alcohol and smoking cigarettes. Neither the Plaintiff nor his son and daughter-in-law have visited that establishment. It was submitted on behalf of the Defendants that, taking into account the present income and assets of the Plaintiff, the cost of accommodating the Plaintiff in that establishment for the rest of his life would be met by an order for provision for him out of the estate of the Deceased in an amount not exceeding $100,000. 44 It cannot be too strongly emphasised that it is not for the Court to direct where the Plaintiff should spend his declining years. That is a matter to be decided by the Plaintiff himself, presumably in consultation with members of his family. 45 What the Court is concerned with is, firstly, the question of whether by her will the Deceased left the Plaintiff without adequate provision for his proper maintenance. The Defendants do not dispute that that question must be answered in the affirmative. In that event, it is for the Court then to decide what order for provision should be made for the Plaintiff out of the estate of the Deceased. 46 The Plaintiff has expressed a desire that, so long as his health allows him, he should remain in residence with his son and daughter-in-law. That is an entirely reasonable attitude on the part of the Plaintiff. It is an attitude which is consistent with the professional opinions expressed by Dr Smith and Miss Fahey. 47 During his marriage to the Deceased (which the evidence discloses was a happy and loving marriage, with the Plaintiff supporting her during her years of ill health and alcohol dependency) there was no suggestion that the Plaintiff should live otherwise than in his own home. The Deceased recognised an entitlement of the Plaintiff to reside in what had been their matrimonial home, although the Deceased did not recognise that the physical condition of the Plaintiff would make such a provision of her will totally inappropriate to the circumstances in which the Plaintiff found himself after her death. 48 I have reached the conclusion that proper provision for the adequate maintenance of the Plaintiff would require that he be entitled to continue, as long as his health enables him to do so, to live in a home environment in the residence of his son and daughter-in-law, rather than to be forced, against his will, to reside in a nursing home (where, despite the submission on behalf of the Defendants in that regard, it would appear that around the clock medical attention is not available). 49 I have already expressed my views concerning the inappropriateness of the strictly arithmetical approach submitted on behalf of the Plaintiff. It seems to me, in all the circumstances of the Plaintiff's present living arrangements, especially where he is in a caring and loving environment provided by his son and daughter-in-law, that he should be enabled to continue in that environment by provision for him out of the estate of the Deceased in a lump sum of $250,000. 50 It will be appreciated, however, that any such entitlement of the Plaintiff must be approached in the context of competing claims upon the testamentary bounty of the Deceased. 51 The four named nieces and nephews of the Deceased are the designated objects of the testamentary beneficence of the Deceased. None of those persons is an eligible person in relation to the Deceased. Some evidence has been placed before the Court concerning the financial and material circumstances of each of those persons. However, as I understand it, the Defendants do not submit that the financial and material circumstances of any or all of those beneficiaries are such that any order for provision an entitlement to which the Plaintiff might otherwise have established should, on that account, be reduced, let alone extinguished. 52 In my conclusion, therefore, the Plaintiff has established an entitlement to receive out of the estate of the Deceased, in lieu of the provision giving to him a right of residency in the Chittaway Point property, a legacy in the sum of $250,000. 53 I make the following orders: