New South Wales Supreme Court CITATION : Gillard v Smith [2000] NSWSC 212 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4260 of 1997 HEARING DATE(S) : 21 February 2000 JUDGMENT DATE : 21 February 2000 PARTIES : Lionel Harold Gillard v Roslyn Patricia Smith JUDGMENT OF : Master Macready at 1 COUNSEL : Miss J. Needham for plaintiff Mr D. Stewart for defendant Pye Rogers Fairfax & Patterson for plaintiff SOLICITORS : Morton & Harris for defendant CATCHWORDS : Family Provision. - Claim by a son with difficulties. - Order made. - No matter of principle. CASES CITED : Singer v Berghouse (1994) 181 CLR 201 DECISION : Paragraphs 13-16. - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY MONDAY 21 FEBRUARY 2000 4260/97 - LIONEL HAROLD GILLARD v ROSLYN PATRICIA SMITH (ESTATE OF RONALD HAROLD GILLARD) & ORS JUDGMENT 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Ronald Harold Gillard, the deceased, who died on 27 May 1997. At that stage he had nine children then living. One of those has since died. The present proceedings are brought by one of the children, Lionel, who was born on 29 December 1952, who is now aged 47 years of age. 2 The will of the deceased provided that the executors would be his daughter Roslyn and his son David Ronald Gillard. They have taken out probate. There were some minor bequests of items of property and there was a direction in cl 6 that the house should be held upon certain trusts. The actual trusts are as followed: - "I give the following directions to my Executors concerning the property that constitutes my home at my death and the furniture in it: (a) My son LIONEL HAROLD GILLARD may live in the house and have use of the furniture as long as he wishes. (b) Any one other child of mine and his or her family may live in the said house with my said son LIONEL HAROLD GILLARD rent free provided that he or she: (i) assists the said LIONEL HAROLD GILLARD in his daily activities; (ii) pays rates and taxes levied on the property, the premiums on insurance policies taken out by my Executors on it and keeps it in repair to their satisfaction. (c) During any period that no other child of mine lives in the said house with the said LIONEL HAROLD GILLARD then he the said LIONEL HAROLD GILLARD shall be responsible to pay rates, taxes and insurance premiums in respect of the said property. (d) Until my son the said LIONEL HAROLD GILLARD has in the opinion of my Executors ceased to live in the house permanently neither the house nor the furniture shall be sold without his consent. (e) Nothing hereinbefore contained in this clause preclude my Executors from subdividing the property upon which my home stands and selling any or all of the said property excluding the lot upon which after such subdivision the house is situate." 3 The will then provided that the residue of the estate shall be held for such as Brian, David, Barry, Lionel, Maxwell, Michael, Rhonda Hudson, Lynette Barker, and Roslyn Smith as survive, they being the children. There is a provision for substitution. Accordingly, it can be seen that the deceased clearly wanted to provide for Lionel to have a secure home and also made provision for some other person who might assist and also live there, upon condition that Lionel was assisted by that person. 4 The estate consisted of little more than the house at the time of the death of the deceased and there were debts in excess of some $30,000. The estate has been realised by selling the property and there is a net estate of about $103,000. There have been costs incurred in relation to this matter, the defendants' costs to date amount to about $13,000 and the plaintiff's costs if an order is made, which is probably likely, are in the order of $10,500. This leaves an estate of some $85,000. 5 The High Court in Singer v Berghouse (1994) 181 CLR 201 at p 209 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 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 As one can see it is necessary for the Court to look at the situation of the plaintiff. The plaintiff himself is single. He has a disability support pension in the amount of $364 a fortnight. He occasionally does some work. He is unable to read or write. He has no assets and left school very early in his life. He appears to have been looked after by his father most of his life and has been dependent upon him. 7 The other children also have to be considered. One of those is Michael. He is living in a relationship which has continued for some years. He is a shearer by trade but that work is seasonal. He and his de facto partner are currently receiving Social Security support until work starts again. They live at Stuart Town in a trailer on someone else's land. Their house was burnt down some time ago and they have lost their possessions. He says that he has never had any assistance from the deceased to purchase real estate. He has obviously had some assistance in that he occasionally would stay at his father's home. There was always a room made available for him. The last time he stayed there was about twelve months before the deceased's death. There is little as to his relationship with his father in evidence, but it is apparent there has been a falling out between the children, given his attitude to his brother Brian and his brother Lionel. He was given an opportunity to be joined as a party earlier but did not avail himself of that opportunity. He has appeared today and I have heard his submissions and have heard evidence from him. 8 There was evidence from Maxwell Bruce Gillard, who has subsequently died. 9 The evidence by the executrix, Roslyn Patricia Smith of her position is that she and her husband own their own property which is worth approximately $210,000 and is unencumbered. Her husband has had a work injury and is receiving workers' compensation. His future is somewhat uncertain. 10 There is the evidence of Rhonda Margaret Hudson and she has given evidence of herself and her husband having built their own home and purchased their own land from their own funds. There was some assistance given to them by the deceased. She is not employed and her husband is on a disability pension and is in poor health. He is facing a number of operations. There is no evidence put on by any other of the beneficiaries as to their situation and accordingly the court can assume that their circumstances are not to be taken into account. 11 The difficulty with this estate is that it is small. All that is suggested on the plaintiff's part is that such funds that are available might be held in trust to provide a home for him. It is suggested that there be some purchase of a house or a block of land and that a kit home be erected on it for the price of about $55,000. The evidence as to how that is to be done is very scanty and it seems to me that there might be some difficulty in using the funds in this way. However, I think something should be done to provide for Lionel over and above the other beneficiaries particularly given that some of the others are able to work and do not have his disability. 12 Accordingly, it seems appropriate to provide that the estate should be held for the benefit of Lionel with power for the Trustees to purchase any real estate or home to hold for the benefit of Lionel alone. Michael has asked that he have a right to live there. The problem with that is that it is not certain precisely what will be provided and, given the animosity that now appears to exist, how the Testator's original intention having someone assist Lionel might be achieved. 13 Accordingly, I order that in lieu of the provisions in para 6 of the will that the residue of the estate shall be held by the executors for the benefit of Lionel during his lifetime with power to purchase for Lionel's use and occupation a home or accommodation, the net cost thereof not exceeding the amount then in the estate, or alternatively for him to be provided with a right of residence in a home run by a Church, government or other reputable organisation or institution provided that not more than twenty percent of the capital of such home shall be non-refundable. I direct that the executor shall have power to sell the home and any substitute home and purchase other accommodation from time to time. In the event that the plaintiff so chooses and he gives notice thereof to the executor of the estate the estate shall be held by the executor in trust for the plaintiff and the other children of the deceased alive at the deceased's death in equal shares. 14 The balance of the estate after the death of Lionel and to the extent that there has not been a termination of the life interest beforehand, will be held in accordance with the provisions of cl 7 of the will. 15 I give the executor power to permit at the executor's discretion any of Lionel's siblings to reside in the property if in the opinion of the executor that would be of assistance to Lionel. 16 So far as costs are concerned, I order that the plaintiff's costs on a party and party basis and the defendants' costs on an indemnity basis to be paid or retained out of the estate of the deceased. oOo Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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