New South Wales Supreme Court CITATION : White v Long [2005] NSWSC 1369 HEARING DATE(S) : 4 February 2005 JUDGMENT DATE : 4 February 2005 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Order provision for daughter of $100,000 plus remainder interest of $80,000. CATCHWORDS : FAMILY PROVISION AND MAINTENANCE - will previously rectified making no provision for applicant daughter - whether applicant should be granted an extension of time - no prejudice to defendant as assets not yet distributed - extension granted LEGISLATION CITED : Family Provision Act 1982 s7 Avril Ethel White (Plaintiff) PARTIES : Ernest William George Long (Defendant) FILE NUMBER(S) : SC 2172 of 2004 Mr T Lynch (Plaintiff) COUNSEL : Mr J Wilson SC (Defendant) Craddock Murray Neumann (Plaintiff) SOLICITORS : Ebsworth and Ebsworth (Defendant) LOWER COURT JURISDICTION : - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J FRIDAY 4 FEBRUARY 2005 2172/04 AVRIL ETHEL WHITE v ERNEST WILLIAM GEORGE LONG JUDGMENT 1 HIS HONOUR: In this matter the plaintiff seeks an order under s7 of the Family Provision Act 1982 for provision for her maintenance and advancement out of the estate of her mother, Ethel Edith Long, who died 20 October 2001, aged 84. As this action was not commenced until the summons was filed on 29 March 2004, the first matter to be considered is whether an extension of time for bringing the application should be granted. 2 Probate of the will was only granted on 2 February 2005. There was considerable delay because an application was made by the defendant for rectification of the will and an order for the rectification was made on 29 October 2004. The result of that order was that the whole of the estate of the deceased passed to the defendant, the widower of the deceased, who is now aged 85. It would, of course, have been open to the plaintiff to seek to obtain a limited grant of administration for the sole purpose of enabling her to bring these proceedings. She is the daughter of the deceased. 3 In the circumstances which arose, as a result of the claim for rectification, the fact that there has been no distribution of the major asset in the estate - and I think there is no possible prejudice to the defendant other than allowing this claim to be made - I am of the view that an extension of time should be given because it could not be seen that the claim of the plaintiff is manifestly hopeless and bound to fail. In those circumstances, I will in due course make the appropriate order. 4 The estate of the deceased at her death existed of one half share in a unit at Cammeray, it being agreed that the present value of that one half share is $267,500. In addition, the deceased held debenture stock of $35,000, some moneys with the Westpac Bank, and some shares. The assets other than the interest in the unit have been transferred to the defendant, their total value being about $40,000. 5 The deceased and the defendant were married in 1942. There were two children of that marriage - the plaintiff born in 1943 and, therefore, now 61 years of age, and a son, Gregory Earnest Long, born in 1946. No claim is made by that son. 6 The deceased and her husband lived in Melbourne until about 1971 when they moved to Sydney. They rented a unit at Cammeray and lived there for about five years and they, subsequently, bought another property at Cammeray, being the one held by the deceased and her husband as tenants in common in equal shares, as at the date of the death of the deceased. 7 Later the defendant purchased a property at Hawks Nest where he now lives and where he lived with his wife. After 1984, the whole of the purchase price for the Cammeray property, and for that matter, the Hawks Nest property, appeared to have been provided by the defendant. The deceased, unfortunately, suffered from Alzheimer's Disease. She was admitted to a nursing home in 1995, and, subsequently, to the Great Lakes Nursing Home at Bulahdelah in 1996 where she remained until the date of her death. Her husband visited her on a weekly basis from Hawks Nest. 8 The plaintiff, Mrs White, has had a difficult life. She has two children, one from a first marriage which failed and one from a second marriage which also failed. It seems, from the evidence given in the witness box this morning, that she has been made bankrupt on two occasions, as a result in the first place of liabilities incurred when a building company, which she and her second husband operated, got into financial difficulties, and, secondly, when she incurred debts which she was unable to pay. She has been discharged from both bankruptcies. 9 Her second marriage came to an end in 1980 when she and her second husband separated. She then worked for a time as a taxi driver. In 1996 she purchased a property at Frankston and in 1998 her brother came to live with her for something less than year. It was a difficult arrangement because it seems her brother has schizophrenia and is also an alcoholic. The position became intolerable and the brother had to leave. The property was then sold and after discharge of a mortgage it seems that the plaintiff obtained the surplus moneys of something in the order of $24,000. She spent that amount for the purchase of a motor car for $24,000 and borrowing an amount of $5,000, from Australian Guarantee Corporation which loan she succeeded in repaying. 10 The plaintiff's daughter also suffers from psychiatric problems and she has had difficulties coping with that. For a time, after the Frankston property was sold, the plaintiff lived at Bulahdelah and was able to spend time with her mother. After her mother died, the plaintiff moved to Woodbury on the Central Coast and then obtained Housing Commission accommodation at Tenambit which is in New South Wales. She had problems with neighbours there and moved to Victoria and is now living in a property which she rents from the Victorian Department of Housing for $62.70 per week. This is a one bedroom unit with a communal laundry. On any basis, it is not luxurious accommodation, but it must be remembered that the plaintiff has not been used to accommodation which many people would regard as reasonable. Her expenses at the present time are covered more or less by the pension which she receives, but she has some debts not of a very substantial nature. 11 The plaintiff has a motor car which she purchased out of the surplus from the sale of the Frankston property and apart from some personal possessions, which are just really items that she needs, she has no assets. She has a Bankcard debt of about $2,900. She is not in good health. She suffers from asthma. She suffers from stress and panic attacks. She has had a difficult life. 12 The defendant, who, as I have said, was a long-standing husband of the deceased, owns the property at Hawks Nest valued at about $430,000 or a bit more. He has a half interest in the unit at Cammeray which half interest has an agreed value of $267,500, a Land Rover motor car worth $20,000, shares worth about $7,000 and moneys on deposit with Westpac Banking Corporation of $32,000. He has a credit debt, but that is of no particular substance, and it is not really suggested he could not easily discharge this. 13 His income from the Cammeray property, meaning the whole of the Cammeray property, for the year ended 30 June 2004 was $14,276. That is, I should say, a return of only about 2.5 per cent on the capital value of that property. His income from other investments was about $2,000, the deposit with Westpac returning an interest of 5.5 per cent. 14 The defendant does not receive a pension, the capital value of his assets apart from his house precludes entitlement. At one stage, he did receive a pension when the Cammeray property did not have such a high value. Those I think are the facts necessary to decide this matter. 15 There is, I think, no doubt that the plaintiff is in the position where it is clear that adequate provision has not been made for her maintenance and advancement in life. That is so, however, because no provision was made for her and she is in needy circumstances. Nevertheless, the question is whether or not the court should make provision for her, having regard to the claim of the defendant, the long-term spouse of the deceased. While it would appear that he is in far better circumstances than his daughter, the fact is that at the present time his income does not cover his outgoings and it could not be said that his outgoings are such that he ought properly to curtail these. What is really put by the plaintiff's counsel is that if provision were made for the plaintiff, so that she would receive two thirds of the one half share in the Cammeray property, then that could be done without having any substantial impact on the position of the defendant. That is because at the present time the Cammeray unit is not returning much on the capital fund involved and if the one half share in that, which the defendant holds, was sold and invested at the same rate of return as being received on the Westpac deposit, and if that were added to, a one third interest in the one half share held by the deceased then his income would come back around to the same amount as before. There is some force in that argument in an estate which is not big and where it is clear the plaintiff's position while not desperate is not good. 16 It is put, however, by counsel for the defendant that when considering the competing claims on the bounty of the deceased, his claim is far superior, having regard to the long marriage, the fact that the assets in the deceased's estate, in essence, came from him, and the fact that he should be left in a position where he would be likely to have no financial worries for the rest of his life. It is said that the Cammeray unit was purchased for their retirement and that he should be allowed to continue to have benefit of that together with any capital increase in its value. 17 What the plaintiff really claims is sufficient to enable her to buy a property at Frankston and to discharge her debts and to have some small capital fund. I have come to the conclusion that an order should not be made of that magnitude. While, of course, people would prefer to own their own properties in circumstances where this plaintiff, as I understand, only once had a property of her own, and at least does have secure accommodation, albeit from the Housing Commission, when comparing her needs with that of her father, I do not think that the claim which she makes for the sharing out of the Cammeray unit is a claim which ought to be allowed. Nevertheless, I have come to the conclusion, in view of the age of her father, that it is appropriate, in the special circumstances which exist here, to make a provision which may enable her to purchase a property on the death of her father. 18 I have come to the conclusion that an order for immediate provision should be made, in any event, accepting that this will require the sale of the Cammeray unit. I consider that an appropriate amount, to be provided for the plaintiff as an immediate legacy, to enable her to discharge her debts and to have some reasonable amount of capital to provide for a somewhat better life is the sum of $100,000. In addition to that, because if it were possible at this stage, having proper regard for the interests of the defendant, to award her a larger amount, I would have done so, I consider that she should have an interest in the remainder in a further sum of $80,000, and I propose to so order. It may be that the parties would like to consider this latter provision, as to how that ought to be imposed, and for that purpose the appropriate course is to stand the matter down to 2 o'clock, to enable that to be done. The effect of that would be a provision of $100,000 now plus an interest in the remainder of $80,000. 19 I make orders sought in paragraph 1 of the summons. I will add in a number 4 order that interest at legacy rates be paid on the sum of $100,000 from 4 June 2005. I make orders in accordance with the short minutes of order initialled by me. Exhibits can be returned. ********** 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.