New South Wales Supreme Court CITATION : Radzyminski v Radzyminski [2008] NSWSC 239 HEARING DATE(S) : 14/03/08 JURISDICTION : Equity Division JUDGMENT OF : Young CJ in Eq EX TEMPORE JUDGMENT DATE : 14 March 2008 DECISION : Order that the defendant hold the whole estate on trust for the plaintiff. CATCHWORDS : SUCCESSION [310]- Family provision application- Application by plaintiff widow (second wife)- Estate value $130,000- No provision for plaintiff in testator's will- Estate left to two sons of first marriage- Sons with little by way of assets- Plaintiff has no proprietary interest in any home- Plaintiff left with considerable debts upon the testator's death- Plaintiff made considerable contribution to the estate in a 10 year relationship- Held that the defendant hold the whole estate on trust for the plaintiff. LEGISLATION CITED : Family Provision Act 1982 CATEGORY : Principal judgment CASES CITED : Easterbrook v Young (1977) 136 CLR 308 Singer v Berghouse (1994) 181 CLR 201 PARTIES : Izabella Elzbieta Radzyminski (P) Mark Radzyminski (D) FILE NUMBER(S) : SC 5824/07 COUNSEL : J Shaw (P) L Ellison SC (D) SOLICITORS : Marina Voncina (P) Chris Nadolski & Associates (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Friday 14 March 2008 5824/07 – RADZYMINSKI v RADZYMINSKI JUDGMENT 1 HIS HONOUR: This is a widow's application for provision under the Family Provision Act 1982 in respect of her late husband Marek who died on 17 June 2006. There were contested probate proceedings over the deceased's estate. As a result of these proceedings, and it would appear after the eventual settlement of them, probate of an informal will of 29 November 2002 was granted to the defendant, one of the deceased's sons. 2 The will provided that the deceased estate was to pass to his two sons equally. Paragraph 4 of the will reads as follows: "After long and serious consideration I decided not to provide for my wife because our paths have separated and she decided to lead an independent life causing me great and continuous psychological stress. My estate comprises a residential house, which I inherited from my uncle ... who I take care of during last years of his life. My wife did not assist me in this task." 3 The inventory of property with the probate showed that the deceased's gross assets had an estimated value of $879,000, the major item being his residence at Matraville which was included at $815,000. This house was in fact mortgaged as at the date of death and, although sold for $815,000, it only realised a net $239,132. Other debts and testamentary expenses have reduced the net value of the estate to the present day to about $130,000. However, it is not possible to put an exact figure on it as there appears to be some uncertainty as to whether the estate owes the Commissioner of Taxation money. I find the evidence on that a little confusing, but I accept that the $130,000 figure may be a bit rubbery. 4 The plaintiff was born in 1953 and is now aged 55. She hales from Poland, but has been living here for the last fourteen years and has schooled herself to speak good English. She married the deceased originally on 22 January 1994. The parties divorced in May 1998. There is some suggestion that they started to cohabitate again as early as October 1998. There is no doubt that they remarried on 24 February 2001. They had no children. They were still living together at the date of the deceased's death. 5 Both the plaintiff and the deceased had children of their own. The plaintiff has a son Bolek who was born on 26 March 1984 and so is now 24. He arrived in Australia in 2001 and lived with the plaintiff and the deceased. The plaintiff also has a daughter Kasia, now aged 29, who lives in Poland and does not seem to have any dependency on the plaintiff at all. 6 The deceased had two sons by his first wife Wanda: Mark who is now 31 and Martin who is now 29. Both are single men without dependants though Martin lives with a girlfriend. Mark is self-employed as a floor finisher. He has few assets and earns only $500 a week. He owes the estate $17,000 in an advance on what he thought would be his legacy and he cannot afford to repay that money. Martin is self-employed as a construction foreman and earns about a thousand dollars a week. He is buying his own house with his girlfriend, though I think the property is in his name, and his net assets are claimed to be $93,000. 7 The plaintiff works as an accountant with a private company. She earns $1,100 per week before tax and receives $100 board per week from her son. Her estimated outgoings are $1,408. It is hard to see how these figures marry up, however, it is clear that she rents the home in which she and her son live at Brighton-le-Sands and she has few if any assets. 8 There has been a large amount of evidence as to family relationships. Most of this material is second-hand from people's alleged understandings of what they gleaned from what the deceased had said from time to time. The material was not of great help in focusing on the key question and that is whether the deceased should have left the plaintiff provision and, if so, what. 9 The evidentiary material in this case actually could be described as extraordinary. Both sides produced statements which looked like affidavits but were not even sworn. The executor was cross-examined. He only offered monosyllabic answers. He would appear to have done nothing whatsoever to administer the estate. He did not know what the situation was with a number of the estate assets. He kept the estate tools in his van and took an advance of $17,000. That is about all it appears he did. 10 There was obviously great ill-feeling between the plaintiff and her step-sons and vice versa. Unfortunately one experiences this in a lot of cases where there is a second marriage, but it does seem to be stronger in the present case than in the average. It is most regrettable that when one has an estate of only $130,000 that a case of this nature has had to go so far when all the participants probably needed the money a lot more than their lawyers. 11 I have pointed to the bulk of evidence on unsatisfactory relationships, but it is clear that the plaintiff and the deceased were living together right up to his death. Further, the plaintiff said in her affidavit, and she repeated it in her re-examination, that on the day before his death she and the deceased attended on a solicitor to sign a purchase agreement for a property at Doonside which was to be bought as joint tenants and they paid a deposit and that the following day they had an appointment with an officer of the St George Bank where they arranged a mortgage. However, when the plaintiff arrived home from work at 5.40pm on 17 June 2006, she found that her husband had suicided. 12 The evidence is that the house in which the plaintiff and her husband lived was a gift from a relative of the deceased's. Mr Ellison SC, who appeared for the defendant, in his submissions says that when that house passed to the deceased it was valued at $450,000 and there was no mortgage on it, however, when the house was sold there was a mortgage of $548,000. He says that this supports the evidence given by the sons of the deceased that there had been high living, there had been the purchase of an expensive car and a trip to Poland for the plaintiff and a car for members of the family and the very best was put in the house by way of renovations because, they say, of the plaintiff's insistence that she only have the best. 13 I do not really consider that there is the support for this proposition that the defendant would have me accept. The two sons were really in no position to see directly what was being expended and on what and their information is usually second-hand. However, it is quite clear that the plaintiff and the deceased were living well above their means and that they were funding their renovations and other expenses out of capital and it was almost certain that this has caused them to downsize their living accommodation and so sell their existing house and purchase a cheaper house at Doonside. 14 The Doonside house was to be bought for $357,500 and this would allow the existing debts to be repaid and the plaintiff says it would be easier for her to pay the debts that would then be payable. She could see that her husband would not ever again be able to do heavy physical work and so would have limited ability to earn income so that the payment would mainly fall on her shoulders. 15 Although the house came about because of the estate of the deceased's uncle, the plaintiff gave evidence that she did make considerable contributions financially to the expenses of the marriage. She says that she paid partly the husband's credit card debts, and throughout the marriage, she did receive moneys from relatives and from her own earnings and she paid debts that were joint. When the testator died leaving only the house plus a boat and a car and various other non-liquid assets, the plaintiff was left with the joint debts and she has been endeavouring to pay them off ever since. There does not appear to be any material which would enable me to doubt any of that evidence. 16 The present situation then is that the estate consists of about $130,000. The plaintiff is 55. She has a good job. She has a son who is living with her and appears to be partly dependent on her, despite the fact that he is now 24. Putting aside the son and focusing on the plaintiff herself, she has some health problems, but, unfortunately, because of the way her case was presented, I do not have great details of those problems. She has no assets of any moment and she is living in rented accommodation. 17 The defendant, who is the eldest son of the deceased, has no assets and is only earning a very modest amount each month, however, he appears able-bodied and one of the reasons why he is earning so little is that he is self-employed. We just do not know what his capacity is in the open labour market. The other son is earning as good money as the widow. He is a young able-bodied man and he is starting to amass assets of his own. 18 In the circumstances, what would the community expect that a testator would have done with his estate of $130,000? The way in which these matters are approached was laid down by the High Court of Australia in the case of Singer v Berghouse (1994) 181 CLR 201. The High Court said that these cases are to be approached by a two-stage process, and I paraphrase: (a) should the testator have made provision for the plaintiff and, if so, is the provision that he made sufficient; and (b) what provision should the testator have made for the plaintiff. 19 As to the first, the testator in fact made no provision for the plaintiff at all. The will says that this was not because of any fault on behalf of the plaintiff other than the testator's allegation that, "Our paths have separated and she decided to lead an independent life causing me great and continuous psychological stress." 20 There is no evidence that the plaintiff's contributions to the marriage financially were not made as she said. The marriage, even allowing for a three year break, was one that lasted for over ten years, which these days is considered to be a long relationship. Even if the plaintiff had got divorced from the testator, it is almost certain that orders would have been made for her to receive something out of the sale of that house. 21 Had the testator died intestate then under the law, the plaintiff would have received at least $200,000. A wife of ten years is normally expected by the community to be in the consideration of a testator even though he may have had some problems with the wife, at least in the situation where nothing about the wife's moral conduct is alleged that could be conduct disentitling. 22 Mr Ellison in his written submissions referred to various decisions of the Court of Appeal and decisions of mine sitting as a single judge and the tension there is between recent decisions of the Court of Appeal, which say that a widow's claim is not to be considered in the same way as it used to be considered, that widows are the first persons always to be taken into account, and the unanimous decision of the High Court in Easterbrook v Young (1977) 136 CLR 308 at 324, which seems to say just the reverse. I have wrestled with that problem before and now is not the time to make any definitive pronouncement, that being left to the High Court in due course. 23 One must look at each case on a case by case basis. In this particular case we have a wife, no conduct disentitling, contributed considerably to the estate, has been left with considerable debts as a result of her husband dying. She was living with the deceased right up to his death and they intended to buy a new house together. She was given absolutely nothing, though the estate was small. In my view, the first limb of Singer v Berghouse is plainly made out: no provision at all has been made for the widow and she should have provision. 24 Turning to the second limb, which is far more difficult, what provision should have been made? Mr Ellison says that if I get to that stage, and he submits I should never get to that stage, then one third to the widow and one third to each of the sons would be appropriate. He points out, and there is material to support this, that the sons have hardly any assets and one son in particular has very little income. 25 He puts on the other side of the equation that the widow is earning good money and that she has no evidence of need. However, the widow is 55. That would normally mean that she only has another nine or ten active working years. Normally one would have thought that a wise and just testator would have realised this and would have thought that the widow needed at least a nest egg to provide for the contingencies of life as she gets older and a fortiori is that the case where the widow has no proprietary interest in any home, but has to pay for her own rented accommodation. And so it seems to me that the case is one where the mere facts of life of this particular woman show that she has need for provision. Furthermore, the needs she has for provision are greater than the value of the whole estate. 26 However, Mr Ellison rightly says that the two sons also are people who are needy and they have no assets. However, although one does not these days give absolute paramountcy to the claim of a widow, the situation of a widow of a long marriage who has no assets, no proprietary interest in a house and who has contributed to the marriage and needs the whole of the estate to provide for what the testator might well have provided for her has considerable claims for priority. That priority claim is to be balanced against the claims of two able-bodied sons who are single and without dependants. Even though those sons have needs, their needs to my mind are just not in the same category as the widow's at all. 27 Accordingly, in my view, the proper order is that the defendant hold the whole estate on trust for the plaintiff. I do not consider this is a case where I should make any order for costs. ********************* 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.