New South Wales Supreme Court CITATION : Flick v Moore; Estate of Shirley Elaine Moore [2006] NSWSC 356 HEARING DATE(S) : 27/04/06 JURISDICTION : Equity Division JUDGMENT OF : Young CJ in Eq EX TEMPORE JUDGMENT DATE : 04/27/2006 DECISION : In lieu of the provision made for him under the will of the testatrix the plaintiff is to receive a legacy of $130,000. Costs of the plaintiff and the costs of the defendant (the latter on the indemnity basis) are to be paid out of the estate of the testatrix. The plaintiff's costs of and from 10 February 2006 are to be paid on the indemnity basis. CATCHWORDS : SUCCESSION [310][317]- Testator's family provision and maintenance- Plaintiff was de facto partner of 30 years- Testatrix 's will provided plaintiff with right to reside in testatrix's house for life- Testatrix had no other assets- Testatrix made statutory declaration giving reasons for will- Plaintiff left with insufficient provision- Order made. LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Crisp v Burns Philp Trustee Co Ltd (Holland J, 18.12.1979, unreported) Singer v Berghouse (1994) 181 CLR 201 PARTIES : John Henry Flick (P) Robert Terence Moore (D) FILE NUMBER(S) : SC 3004/05 COUNSEL : R Taperell (P) R Wilkinson (D) SOLICITORS : Cantle Carmichael (P) Harris Wheeler (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Thursday 27 April 2006 3004/05 – FLICK v MOORE; ESTATE OF SHIRLEY ELAINE MOORE JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 by a person who claims to be the de facto widower of the late Shirley Elaine Moore who died on 17 October 2004, aged 79. Probate was granted to the defendant, a son of the testatrix, on 25 February 2005. The testatrix's assets consist of her home at 16 Ida Street, Mayfield, worth about $210,000 and approximately a thousand dollars in cash. This is after all the estate expenses have been paid, except the costs of these proceedings which are estimated to be $46,500. 2 The will provided that the plaintiff should receive the right to live in the Mayfield property on various conditions. Essentially, that he had the right to live there for life, or until he remarried or entered into a de facto relationship or failed to continually live in the residence; that he pay all insurance policies taken out by the estate on the property and pay all rates, taxes and other outgoings and keep the residence in repair. 3 The residue, such as it is, was to be split into four parts. The testatrix had three children: Robert, Carol and Ronald. They were to get one quarter of the residue each and the plaintiff the final quarter. 4 The plaintiff is now 62. He first met the testatrix in 1970. They lived together in a de facto relationship from 1974 to 1976. They married in 1976, separated in 1980, and were divorced in 1981. In early 1983, after the testatrix suffered a heart attack, they came together again and lived together until the testatrix's death in 2004. 5 The plaintiff says that he is in ill health with back problems and although he tries to work when he can, he essentially lives on his Centrelink pension of $247 per week and that he has very little left over by way of income to meet his recurrent needs. His only assets are $411 in banks, but he has no liabilities. 6 The defendant executor, a son of the deceased, and her daughter Carol have put on affidavits suggesting that the relationship of the plaintiff and the testatrix was not as close as the plaintiff would have me believe. I do not need to adjudicate on this. The probabilities are that the plaintiff has gilded the lily somewhat as have the defendants in the other direction. 7 The facts remain that the testatrix and the plaintiff were living together for 30 years, with a short break in the 1980s. Neither of them had much by way of worldly goods. They lived in the testatrix's house. The plaintiff did some work around the house, he contributed to the household expenses and he and the testatrix cared for each other as long as they could. 8 The defendant is the only child to have put on some evidence as to his own needs. He is a Vietnam veteran whose health is not good and he has other problems as well. 9 However, the amount of money involved in this particular case really means that the probabilities will be that the testatrix's duty towards the man she was living with for much of 30 years will subsume any duty that she might owe to other people. 10 The testatrix made a statutory declaration on 23 September 2004, that is, very shortly before her death. There is not much material as to how this document was brought into being but para 10 relates to an argument over a blank bank withdrawal slip and para 11 says: "After careful consideration I have decided that John" (that is the plaintiff) "should be able to live in the Mayfield Property during his lifetime in accordance with Schedule 1 of my Will. Additionally, I have also decided that John Flick should be given a one quarter interest in the Property after I die. 12. There are a number of reasons why I have decided that John Flick should not be given the entire Property after I die. Firstly, the money that paid for the Property was ultimately obtained from the family home in Wallsend. I want my children to get the benefit of some of that money by having a share in the Mayfield Property. Furthermore my children have assisted me throughout my entire life both financially and otherwise. I want to be able to repay them for their help over the years. None of my children own their homes and they are in need of whatever financial assistance I can give them. 13. John has never helped me financially and I do not want him to obtain the entire property after I die...I want John to have somewhere to live but I do not want him to own the house entirely at the expense of my children. As John has a gambling problem I do not want him to gamble away the entirety of my estate. I think it is sufficient that I provide him with a place to live and a quarter share in my estate". 11 The statutory declaration is merely appended to affidavits. As I have said, there is no indication as to the circumstances under which the testatrix made it. It is subscribed before one Katrina Reye who says she is a solicitor, but she was never called to give evidence in the case. 12 Mr Flick says that he does not really want to live in the house at Mayfield any longer. He says he has no contact with people in the Newcastle Hunter region and he would like instead to live in the Lismore area. He has put forward some material to suggest that he could acquire a dwelling in the Lismore area for somewhere between $120,000 and $165,000. 13 Mr Taperell, who appears for the plaintiff, says that it is clear that the testatrix owed a duty to the man with whom she had been living as wife and husband for so long, to provide for his accommodation and that, as things have turned out, she has not done so. Accordingly, there should be an order made under the Act to provide him with some accommodation. He suggests that in lieu of the provision made for him under the will he receive $130,000. 14 On the figures that I have, assuming that the property at Mayfield can be sold for $210,000, there will be about $50,000 for the costs of these proceedings and the cost of the sale leaving $160,000 to be divided up. This will mean if there is $130,000 given to the plaintiff that each of the children will take $10,000 now rather than waiting for a share in Mayfield after the plaintiff dies or ceases to live there permanently. 15 Mr Wilkinson, for the defendant, says that the testatrix acknowledged what her duties were in her statutory declaration. She assessed things carefully. She gave reasons why she did not want the plaintiff to have capital and why she wanted some moneys to go to the children. He says that if the plaintiff had not brought these proceedings then there would have been no reason why the property at Mayfield would have had to be sold and the costs incurred. 16 There is something to be said for this but, on the other hand, one would have thought that experienced lawyers with this form of will would have realised that it just could not work. Judges have been saying certainly for as long as I've been on the bench, over 20 years, that making provision for a person by way of a life estate and a fortiori a right to reside pending good health, is usually not a proper provision for a spouse. The very least one must do, if one is going to adopt this sort of will, is to provide for the sort of scheme that is set out in Crisp v Burns Philp Trustee Co Ltd (Holland J, 18 December 1979, unreported), but the vital part of the judgment is printed in Mason and Handler's Probate Practice at [9433]. A testator must not only make provision for a life estate in the house, but also provision for the house to be sold for other accommodation and provision of nursing home accommodation, et cetera. That the testatrix did not do. 17 The brutal fact is, however, that even putting aside the plaintiff's costs the defendant and his sister have amassed costs of $15,500. It would possibly appear that they have been a little more aggressive in their defence than was warranted but, on the other hand, $15,500 for a defendant's costs of this sort of proceedings is very reasonable. 18 As there is only $1,000 in the estate and as those costs are testamentary expenses, even putting aside the plaintiff's costs, the house will have to be sold. If the house is sold then it means that, based on the events which have happened judged by the Court as at today, the testatrix has not in fact made sufficient provision for a house and even on the testatrix's own assessment of the situation in her statutory declaration, there was not adequate provision made for her de facto spouse. 19 Mr Wilkinson reminded me, as virtually every member of the bar does in these sort of applications, of the two-fold test in Singer v Berghouse (1994) 181 CLR 201, especially at 209 and 210. The first question is was the provision made for the applicant adequate for his proper maintenance. The answer to that would seem to be that even the testatrix acknowledged that in the events which have now happened it was not. 20 The second stage needs the Court to assess what is the proper level of maintenance. It is very difficult in these sort of cases of a relatively small estate to do this. If at all possible the Court makes a Crisp order, but a Crisp order does involve some expense and it also involves some goodwill between the parties. Having read the affidavits in these proceedings, it does not seem to me there is a sufficient element of goodwill that would make a Crisp order work. 21 Accordingly, it would seem to me that the proper provision is, as Mr Taperell puts it, in lieu of the provision made for him under the will of the late Shirley Elaine Moore the plaintiff receive a legacy of $130,000. That legacy is not to carry interest if paid within 28 days of the plaintiff vacating number 16 Ida Street, Mayfield but thereafter is to carry interest as if it were a legacy in the will from that date. 22 The costs of the plaintiff and the costs of the defendant (the latter on the indemnity basis) are to be paid out of the estate of the testatrix. The plaintiff's costs on and from 10 February 2006 are to be on the indemnity basis. ******************** 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.