New South Wales Supreme Court CITATION : Deaves v Anthony [2004] NSWSC 683 HEARING DATE(S) : Monday 26 July 2004 JUDGMENT DATE : 26 July 2004 JURISDICTION: Equity JUDGMENT OF : Acting Master Berecry at 1 DECISION : See paragraph 37 CATCHWORDS : FAMILY PROVISION -- de facto relationship -- long and happy relationship -- declining health -- need for assisted care accomodation -- competing needs LEGISLATION CITED : Family Provision Act 1982 Elliott v Elliott, Powell J, unreported 18 May 1984 CASES CITED : Luciano v Rosenblum (1985) 2 NSWLR 65 Marshall v Carruthers [2002] NSWCA 47 Shaheen v Najjar, Master Macready, unreported 26 August 1994 PARTIES : Arthur Deaves - plaintiff John Anthony - defendant FILE NUMBER(S) : SC 2115/04 COUNSEL : Y Holt for plaintiff RH Taperell for defendant SOLICITORS : Fiddes McKenzie Lawyers for plaintiff Braye Cragg Solicitors for defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION Acting Master Berecry Monday 26 July 2004 2115/04 Arthur Deaves v John Anthony – Estate of June Sybil Deaves JUDGMENT 1 MASTER: This is an application brought pursuant to s 7 of the Family Provision Act 1982 (the Act) for additional provision to be made out of the estate of June Sybil Deaves for the plaintiff. 2 The plaintiff and the deceased lived together in a de facto relationship from approximately 1972 to 2004. In January 2004 the deceased died. At the time of death the plaintiff, therefore, was in a de facto relationship with the deceased. The plaintiff, therefore, falls within the category of eligible persons in the definition in the section of the Act, namely, section 6(1). 3 The relationship lasted approximately thirty years. There is no evidence to suggest that there was not a de facto relationship or that the relationship was not happy and harmonious. There is supporting evidence that the deceased and the plaintiff lived in a de facto relationship. 4 The evidence from the plaintiff is that during his working life he paid for most of the expenses associated with the relationship, namely, household expenses and certain annual expenses. His evidence is that on retirement both he and the deceased were on aged pensions and they pooled their financial resources for the purpose of day to day living. 5 The plaintiff's evidence was that from time to time he rendered financial assistance to the deceased's children or grand children. There is also evidence from the plaintiff that he used an inheritance he received from his mother's estate, approximately $6,000, towards the maintenance and upkeep of the deceased's property. 6 After a short period, at the beginning of the relationship, of living with one of the plaintiff's sisters, the plaintiff and the deceased moved into her home which is the major asset in his estate. The plaintiff's evidence was that he drove the deceased whenever shopping was required and assisted in the normal day to day duties and functions associated with a family. 7 In 1999 the plaintiff had a stroke and as a result of that stroke the plaintiff's quality of life changed. His evidence is that he is paralysed down the left side of his body and that he was unable to look after himself. He developed high blood pressure and initially used a walking frame to enable him to retain some mobility. He has poor eyesight in one eye. This morning in the witness box he gave some evidence in relation to the disability of his eyesight and evidence in relation to his mobility. 8 Since 1999 the primary carer for the plaintiff was the deceased. Assistance was also rendered by a grand daughter and, of course, since the death of the deceased by the plaintiff's sister. 9 It seems to me that there is no controversy about the disabilities that the plaintiff suffers from or the fact that the plaintiff needs some assistance. The plaintiff has modest assets. His evidence is that at the time of making his affidavit in chief he had approximately $3,000 in a bank account and a motor vehicle worth approximately $5,000. He had a debt in respect of his motorised wheelchair of fifteen hundred dollars. 10 Under the will the plaintiff is entitled to receive the television, CD player, the motor vehicle and any money that the deceased had at the date of death. What that means in reality is that if the goods are still available the plaintiff is entitled, under the terms of the will, to the television, the CD player and the motor vehicle. 11 Evidence has been put on behalf of the plaintiff concerning his disabilities and the support that he will require for the rest of his life. The evidence of Dr Richard Drew, found in his report attached to his affidavit of 25 April 2004, is, in summary on the second page of his report, his opinion: "His long term prognosis is that we would expect no further improvement in his current incapacity". 12 Affidavits have been put on by Ms D Renton sworn 25 June 2004 which attached a report she prepared in relation to the plaintiff's needs and there is also an affidavit sworn on 19 May 2004 by Ms Mavis Slingsby. Ms Slingsby is the area manager and is responsible for the management of Rosedale Village at Cooranbong. It is that village where the plaintiff currently resides. In Ms Slingsby's affidavit her evidence is that there were currently available on 19 May 2004 two assisted care units with prices ranging from $104,000 to $120,000. Her evidence also sets out what is provided in the assisted care units. The residents are provided with three meals a day plus morning and afternoon tea, there is a grocery trolley providing basic food items such as milk and bread and daily assistance is provided with showering and dressing and personal care. The rooms are cleaned weekly and clothes and linen are washed and ironed and bedrooms are changed weekly or more frequently if required. In paragraph 7 of her affidavit she sets out the matters which the residents must provide at their own cost. I won't go into them all but they include podiatry, hair cuts and in relation to the submissions made mention has been made of things such as medication and personal toiletries and the like. 13 The report by Ms Renton sets out the furniture and bedroom requirements that the plaintiff will have to meet when moving into the assisted care unit. In addition she sets out services he will require and provision for annual premiums for a private health fund. Submissions have been made on behalf of the estate in respect of some of the items that Ms Renton has set out in her report, in particular the bed. However, it is also submitted that some of the items that she has quantified may perhaps be a little bit on the light side. In all, she is of the view that the cost to acquire the unit would be approximately thirteen and a half thousand dollars. 14 Evidence has been put on by the other two beneficiaries of the estate, they being a son and daughter of the deceased. Under the terms of the will the daughter is to receive a legacy of $30,000 and the son, in essence, receives the balance of the estate. The daughter, Marlene Margaret Allen, has set out in her affidavit of 22 July the assets and liabilities of herself and her husband and it would appear from her evidence that they are of modest circumstances. Any provision made for the plaintiff should not result in any diminution of the legacy provided to Marlene and, in fact, of course it won't because any provision made in favour of the plaintiff will come out of the rest and residue of the estate rather than the specific bequests. 15 The son of the deceased is the major beneficiary. In essence what he receives is the realty of the estate and the realty is the property where the deceased and the plaintiff resided for most of the thirty years of their relationship. The deceased's son, Kerry Deaves, is in a far better position than both his sister and plaintiff. Both he and his wife work. His wife has a postal run with Australia Post which generates a reasonable level of income. They own their own house which is located on a reasonably large block of land and the evidence was the land is contained in twenty acres and they run five head of cattle on that property. Mr Kerry Deaves' evidence was that the property would probably not sustain more than five head of cattle and it was not a commercial venture and does not produce an income. 16 The value of the property at Martinsville is given on his opinion at around $300,000. There is no evidence that there are any encumbrances in respect of that property. Mr Kerry Deaves received the sum of $250,000 from the proceeds of a common law claim. It would appear he has used some of those funds to acquire another property at Cooranbong, a property known as 289 Freemans Drive which was purchased in 2003 by him for approximately $197,000. The intention of both he and his wife, who are the registered joint tenants of that property, is to use it as an investment property. There was evidence that the property was rented for approximately $170 per week but, however, there is no longer a tenant there and the Deaves are trying to undertake renovations and maintenance on that property. Mrs Deaves' evidence was that once the property has been renovated in all probability it will attract about the same income they received before hand. In terms of the current value of the property her evidence was that it is probably about the same as it was when it was purchased although she conceded it might be worth a little bit more because of the new kitchen being put into the property. 17 There is no valuation evidence before me of the current value and having regard to the size of the estate that is quite a proper approach to take. It is not necessary to run up additional costs for something which is not going to play a significant role. 18 Mr Kerry Deaves also has contributed to two superannuation funds, one with Colonial Mutual which is currently worth $35,000 on his behalf and one with Coal Super Services which is approximately $73,000. Once again, there is no evidence that either he or his wife have any large debts. Their income, to some extent, is offset by the fact that the work performed for Australia Post is done under the auspices of a company. Mrs Deaves' evidence was that last year it became a requirement of Australia Post that people employed by Australia Post to do the postal runs were required to have a corporate entity and the contract with Australia Post is through that entity. 19 There are, of course, some benefits flowing from that for the Deaves: namely, that a number of expenses that, perhaps, otherwise may not be strictly business expenses become expenses of the company and therefore there is a taxation benefit to them. 20 It is submitted on behalf of the plaintiff that the provision for him in addition to the provision already made in the will should include a sufficient sum to enable him to acquire the accommodation at Rosedale. It is agreed that the unit he is currently occupying would cost $104,000. It is also agreed that provision should be made for an additional $5,000 to cover the incidental costs associated with Mr Deaves taking up an interest in that unit. 21 Further, it is submitted that I should adopt the figure set out in Ms Renton's report together with provision for a sum of money which will discharge the debt on the motorised wheelchair and that I should provide him with sufficient funds to derive an income for the rest of his life. 22 It is submitted on behalf of the defendant that on current life expectancy tables the plaintiff's life expectancy is just over fourteen years. 23 The basis of the submission for an income for the plaintiff is that line of cases starting with Justice Powell's decision in Luciano v Rosenblum (1985) 2 NSWLR 65. His Honour said: "where there has been a marriage of long standing and one that was happy and harmonious then, at the very least, the surviving spouse should be provided, where the estate can manage it, an unencumbered property, a sum of money to enable that person to maintain the standard of living that he or she had enjoyed during the life of the deceased and a contingency fund to enable that person to enjoy perhaps the little luxuries of life." 24 In Marshall v Carruthers [2002] NSWCA 47 Justice Young makes some comments in relation to Luciano v Rosenblum, supra, as did Justice Hodgson. In essence it was that what Justice Powell said in Luciano v Rosenblum was not a statement that applies to all cases; it was no more than a broad general rule. 25 In paragraph 74 of his judgment Justice Young, in the context of what I just said, made the following comment: "Powell J's broad general rule may not be a good guide as to what the Court will consider as the duty of a testator towards a spouse except in the case of a financially dependant spouse where there is a history of brining up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue." 26 The caveat then is that in approaching any application under the Family Provision Act where there is a surviving spouse and it was a long relationship or marriage that it does not invariably follow that what was provided in Luciano v Rosenblum, supra, and Elliott v Elliott, Powell J, unreported 18 May 1984, will apply in other cases. There is, however, some tension in some of the authorities; the unreported decision of Master Macready in Shaheen v Najjar (26 August 1994). The Master was dealing there with a plaintiff widower and he said as follows: "In the present case the parties had lived together for some 31 years happily married and it is quite clear, in my view, that the plaintiff should receive the whole of the matrimonial home." 27 What provision should be made for the plaintiff in the present case? The key element is the size of the estate and the needs of the plaintiff. There is, of course, a need to balance any competing needs. In the present case the plaintiff is a sixty nine year old man with disabilities and in need of medical attention. He is unable to maintain an independent life style and has for some time required either the assistance of his partner or others such as his grand daughter and his sister and now requires professional carers to look after him. He has virtually nothing in the way of assets. 28 The competing needs are those of the deceased's daughter who is in modest circumstances but who has not made any challenge to her mother's will and that of the son, Kerry. Kerry is in a far better position than either the plaintiff or his sister. Will Kerry's needs be adversely affected by provision being made for the plaintiff? 29 Counsel this morning has told me that the costs to both parties to date is some $50,000. Probate was granted on 13 July 2004. The inventory of property discloses that the estate is value at approximately $557,000 and of that figure the estimate given for the realty is $550,000. It can be seen that that is the most significant asset in the estate. It can also be seen, having regard to the costs incurred to date by both sides, that in all probability, notwithstanding the desire of Kerry, that the property will have to be sold if for no other reason than to pay legal costs. 30 It is urged upon me that there should be provision in addition to the accommodation for the plaintiff by way of an additional sum of $180,000. That figure would provide for the plaintiff's furniture and accommodation requirements, and discharge the debt. It would cover items of personalty that he needs including clothing and would leave a fund which could be invested so that it produces an income for him. 31 The plaintiff's evidence is that he currently he has about $58 a fortnight. Clearly he should not have to exist on $58 a fortnight to meet his other needs. It is true counsel for the defendant has submitted that he has not during the course of his working life contributed to a private health fund and there should not be a requirement for the estate to provide that now. In my view the plaintiff should be provided with a contingency sum which does take into account a lump sum which can either be invested for the plaintiff or used by the plaintiff as a when he needs to cover such things as replacement of the motorised wheelchair, attending outings and functions organised by the retirement village, replacing from time to time the furniture that he has and covering medical costs that he no doubt will incur, in particular in relation to his eyesight and to discharge the debt in relation to the motorised wheelchair and to enable him to acquire some items which will make his life comfortable. 32 It is clear from Ms Slingsby's affidavit that much of his day to day requirements will be provided out of his aged care pension of which 87.5 percent goes directly to the retirement village. However, there are a lot of items that he should be entitled to aquire, if not to improve his quality of life, at least maintain that quality at a reasonable level. 33 In my view, having regard to the length of the relationship of the deceased and the plaintiff and having regard to the quality of that relationship this is such a case where the estate should make provision for the accommodation that the plaintiff desires. It is not luxurious accommodation, it is fairly basic accommodation though it is accommodation which will provide facilities of a carer that he needs. It is agreed that provision for that is $109,000. 34 The other incidental items, as I say by way of an aside, although it is not seriously challenged, a number of the items that are set out in Ms Renton's affidavit I do not accept are items that the plaintiff will need to acquire having regard to the establishment of where he is going. Nonetheless, in my view, the plaintiff should be entitled to a fund which will cover the initial accommodation requirements, will discharge his debts, will give him a fund which will enable him from time to time and when needed to acquire clothing. Whilst there is no evidence before me of his requirement for clothes clearly a person needs to buy clothes from time to time. 35 In my view provision should be made for the plaintiff out of this estate and there should be a payment by way of a lump sum in addition to the provision that he takes under the will in an amount of $200,000. 36 It has been urged on me by counsel for the defendant that interest should not run on any provision made for the plaintiff for a period of, I think, six months. It has also been urged upon me by counsel for the plaintiff that the order I make should transfer the property to the plaintiff with provision for a charge in respect of the legacies for the children of the deceased. I do not intend to do that. In my view that goes beyond what is called for on this application. I do, however, recognise that there is an immediate need for the plaintiff to secure his accommodation, by making provision that interest is not to run for a period greater than is normally provided but it seems to me I may prejudice the plaintiff's ability to retain the accommodation that he currently has at the retirement village and, therefore, I decline to take up the suggestion made by either counsel in respect of the provision that I make. 37 The order I make, therefore, is that there be paid to the plaintiff by way of lump sum an amount of $200,000 out of the estate of the late June Sybil Deaves. That the estate pay the plaintiff's costs on a party party basis and that the defendant's costs be paid out of the estate on the indemnity basis. I make no other order. ********** Last Modified: 08/06/2004 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.