Supreme Court New South Wales Medium Neutral Citation: Margaret Prior v Tanya Lynne Kerrison [2017] NSWSC 1295 Hearing dates: 31 July 2017 – 1 August 2017 Date of orders: 15 September 2017 Decision date: 14 August 2017 Jurisdiction: Equity Before: Rein J Decision: See [41] – [43] Catchwords: EQUITY – claim by de facto partner of thirty years for a family provision order to be made pursuant to s 59 of the Succession Act 2006 ("the Act") – where the defendants, the two adult children of the deceased, accepted that the will, by provision of a life estate to the de facto and a small legacy, was inadequate having regard to her financial position – extent of the provision to be made having regard to various factors, including the expressed consideration by the testator of the de facto's claim on his bounty, the separation of their finances, the fact that both testator and de facto had previously been married and had children by those marriages, and the age and financial circumstances of the children of the testator – issues raised about the value of the properties – dispute as to ownership of certain assets of the deceased – whether a Crisp order should be made for the benefit of the de facto against a property of the deceased's estate – whether a Crisp order should be made in circumstances where there is a poor relationship between the de facto and the defendants. Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) Johnson v Wright [2012] NSWSC 879 O'Leary v O'Leary & Eccles [2010] NSWSC 1347 Milillo v Konnecke [2009] NSWCA 109 Life v Hall [2016] NSWSC 316 Alexander v Jansson [2010] NSWCA 176 Re Fulop (1987) 8 NSWLR 679 Stewart v McDougall unreported (NSWSC Young J 19 November 1987) Vigolo v Bostin (2005) 221 CLR 191 Slack v Rogan [2013] NSWSC 522 Salmon v Osmond [2015] NSWCA 42 Foley v Ellis [2008] NSWCA 288 Chan v Chan [2016] NSWCA 222 Texts Cited: Nil Category: Principal judgment Parties: Margaret Prior (Plaintiff) Tanya Lynne Kerrison (First Defendant) Craig John Moss (Second Defendant) Representation: Counsel: L. Ellison SC (Plaintiff) N. Bilinsky (First Defendant & Second Defendant) Solicitors: Rickards Whiteley (Plaintiff) Armstrong Legal (First Defendant & Second Defendant) File Number(s): 2016/330017 Publication restriction: Nil Judgment 1. The late Brian John Moss ("Brian") died on 19 November 2015. Probate of his will of 8 November 2011 was granted on 19 November 2015 to his executors, Ms Tanya Lynne Kerrison ("Tanya"), his daughter, and Mr Craig John Moss ("Craig"), his son. 2. The estate has a net value of approximately $1.2 million. 3. By the will Brian granted: 1. to Margaret Prior ("Marg") a life interest in a house at 143 Cornish Street Broken Hill ("Number 143") "until she may marry or enter into a de facto relationship" provided she pay all rates, taxes and insurance and keep the property in repair to the satisfaction of the trustees; 2. $15,000 to Marg; and 3. the residue of the estate equally to Tanya and Craig. 1. Paragraph 8 of the will contained the following: I DECLARE that I have not made further provision in my will for MARGARET PRIOR as I consider that I have supported her and made adequate provision for her during my lifetime. 1. Brian also signed a statutory declaration in which he explained his reasons for providing Marg with a life interest in Number 143, which I set out: 4. I have not made any further provision for Margaret under my Will for the following reasons; a. At commencement of my relationship I had to my name, inter alia, the following assets; (i) 143 Cornish Street, Broken Hill being the whole of the land contained in Folio Identifier 1/315192 (unencumbered); (ii) My business 'Brian Moss Men's Hairdressing' and premises at 63A Oxide Street, Broken Hill (unencumbered); (iii) Commercial premises at 63 Oxide Street, Broken Hill (unencumbered); (iv) A 1985 VK 'Brock' Holden Commodore (unencumbered); b. During the period of the relationship I have purchased (without assistance from Margaret) an additional commercial premises at 314 - 322 Brookfield Avenue. I have also purchased a residential premises in Canberra which I now let to the Defence Housing Authority. Both properties are unencumbered. c. At commencement of the relationship Margaret had to her name the following assets; (i) A 180B Datsun; (ii) A residential property at Piper Street, Broken Hill (unencumbered); d. Margaret kept the residential property at Piper Street for a couple of years into our relationship and then she sold it. The proceeds therefrom were gifted by Margaret to her own children. I never saw any of the funds from the proceeds of this sale, nor did I want to. e. During the period of our relationship I have supported Margaret by paying all of our living expenses including, but not limited to, electricity, gas, phone, wafer, council rates, insurance etc. f. Margaret will contribute to food shopping on occasion, but not on a regular basis. g. I have built up property and assets over my lifetime for the sake of my children. I want to give them a kick start. h. I believe that by allowing Margaret a life interest in 143 Cornish Street, Broken Hill I have made sufficient provision for her. She will be eligible for the pension and will be adequately provided for. i. Margaret and I have previously agreed that everything she has goes to her kids and everything I have goes to mine. 1. Marg seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) "the Act". Mr L. Ellison SC appears for Marg and Mr N. Bilinsky of counsel appears for Tanya and Craig. I set out the relevant portion of s 59 and also s 60(1) and s 60(2) of the Act: 59 When family provision order may be made (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the applicant) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person--the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's life-time or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. 1. A second claim on the estate was made by Mrs Lynette Helen Elstone (2017/81517), and heard together with Marg's claim. Mrs Elstone was married to Brian for 16 years until 1985 and is the mother of Tanya and Craig. That claim was settled on the second day of the hearing and involved the executors paying $80,000 to Mrs Elstone in total. 2. I shall set out briefly the history of Brian and his relationships: 1. Brian was born on 20 October 1946, and was 69 years of age at his death. 2. He was married to Lynette on 22 February 1969 and separated in 1985. They were divorced in 1992. Craig (born in 1969) and Tanya (born in 1970) were the only children of the marriage. 3. In 1982 he met Marg and he commenced a de facto relationship with her in 1985, precipitating the departure of Lynette and the children from the matrimonial home. Brian was a hairdresser and had a barber shop in Broken Hill. Marg was also a hairdresser and she commenced working at Brian's shop in 1982. 4. Brian remained in a de facto relationship with Marg until his death, except for a short period in 2010, which Marg says lasted 2 months, or several short periods, if Tanya's evidence is accepted. 5. Brian retired as a barber in September 2006. 6. Marg was born in 1945 and is now 71 years of age. She was married before she met Brian and she has two children by that previous marriage, John and Janette. She has a life expectancy, it was agreed, of at least 18 years. 1. After the separation from Brian, Lynette moved, with Tanya and Craig, to a house in Broken Hill which she purchased. In 1991 she moved to Adelaide and subsequently married Darryl, to whom she is still married. 2. There were, in the affidavits relied on by the parties, a number of factual contests, many of which were treated as irrelevant in the conduct of the case before me. I set out below matters, additional to those already mentioned, which are not now in contest: 1. Marg and Brian lived together in a de facto relationship from 1985 until Brian's death in 2015, except for one or two short periods of separation. 2. When Marg and Brian commenced living together Marg had two adult children. 3. Marg and Brian kept their earnings and savings separate from each other and did not have joint bank accounts. Marg paid for the vehicles she owned and their registration: see T36 – T37, and Brian paid for the vehicles he owned and their registration, except for the Holden Captiva registered in Marg's name, which was paid for by Brian and the 2001 Blue Nissan Patrol ("Nissan"), which was paid for by both Marg and Brian, but was registered in Brian's name (there is, however, a dispute over the amount that Marg contributed to the purchase price.) 4. Lynette and Brian maintained civil relations and Brian had access to their children, Craig and Tanya, both in Broken Hill and later in Adelaide. Lynette travelled to Broken Hill in Brian's last few weeks before death. Craig and Tanya remained close to Brian. 5. Early in the de facto relationship, Brian and Marg agreed that whatever she had on her death would go to her children, and that whatever he had would go to his children. 6. Marg did carry out work assisting the builder engaged by Brian to renovate Number 143, but all of the money paid for those renovations and for repairs over the years was paid by Brian: see T40.10. 7. At the commencement of the relationship between Brian and Marg, Brian owned Number 143, premises at 63A Oxide Street ("Number 63A") and the hairdressing business he conducted there, premises at 63 Oxide Street ("Number 63"), and a Holden Commodore. During the relationship he purchased, without Marge's assistance, premises at 314 – 322 Brookfield Avenue ("the Brookfield premises"). He also acquired Number 145 and a unit in Philip in the ACT ("the ACT unit") during their relationship without Marg's assistance. The rents received by Brian on properties owned by him were not shared with Marg. 8. At the commencement of the relationship Marg owned a residential property at Piper Street Broken Hill ("Piper Street"), the small remaining debt on which she repaid out of her own funds within a few years. The rent received by Marg for the property was kept by her. 9. Both Marg and Brian had a clear understanding that what each owned would go to their respective children: see T38.14 – T38.35 and Marg expressed this position to Tanya shortly before Brian's death: see paragraph 31 of Tanya's affidavit at p 353. 10. Marg sold Piper Street in 2007 and the bulk of the proceeds of the sale were used to support the business of Marg's son, John, and were lost as a result of the failure of the business. Brian also contributed $15,000 to John's business at Marg's request (see: T40.39 - T41.4) and that sum was also lost. Marg did buy some jewellery for herself out of the balance received from the sale of Piper Street. 11. Brian was very unhappy at the loss of the $15,000 but he became even more antagonistic to John when Tanya accused John of a serious crime, and he refused to permit John to enter the house ever again. Marg admits that there was a period of separation between herself and Brian in 2010: see T42.29 – T42.32, but denied that it was a result of the allegation made by Tanya: see paragraph 8 of Marg's affidavit of 21 April 2017. 12. Marg has good relations with John and Janette and intends to bequeath any property she has to them: see T40.19 – T40.21. 13. Marg is in essentially good health. She resides in Number 143 at the moment. The adjacent property, 145 Cornish Street ("Number 145"), which has only a shed and carport on it, is used to store some unregistered vehicles and equipment. 14. Marg receives a pension of $888 per fortnight and supplements this with the proceeds of haircutting, she says about $80 per week, but not every week: see T33.46. She has been able to save $5,000 between November 2016 and July 2017: see T33.48 – 50. 15. Marg has lived in Broken Hill most of her life and has a network of friends there: see T44- T45. 16. Marg has entered into a relationship with Mr Alan Chandler, who owns an antique store in Broken Hill and is a keen motorcyclist. Marg and Mr Chandler cycle together and Marg spends up to four or five nights a month at Mr Chandler's home. Marg said at T42.39 – T42.41 that Mr Chandler was "just a friend", but the answers that she gave at T43 make it clear that the relationship is more than that and see T44.14 – T44.20. 17. The principal assets of the estate are: 1. Number 143; 2. Number 145; 3. Brookfield premises (three commercial premises in Broken Hill); 4. The ACT unit; 5. Number 63; 6. Number 63A; 7. Shares worth $47,500; 8. Motor vehicles and a quad bike; 9. Cash to a value of $217,000. 1. There is also contained in Number 143 personal and household contents said in the assets list in support of probate to have a value of $75,000, but are likely to be worth far less than that. Marg agrees that Number 143 is adequate accommodation for her needs: see T34.15 – T34.16. 2. Number 63 and Number 63A each have a rental earning of $130 per week. The ACT unit rents for $1,700 per month. Brookfield rents for approximately $1,400 per month. 3. In relation to the real estate, there is agreement on what the Brookfield premises and the ACT unit are worth, $175,000 and $440,000 respectively and Number 63 ($60,000), Number 63A ($60,000), but disagreement on the value of Number 143 and Number 145. One appraisal has Number 143 as $179,000, and another at $120,000. The probate application listed it as $125,000. 4. In relation to Number 145, it is listed in the probate application as worth $45,000, a figure of $120,000 comes from Tanya's affidavit, and $15,000 come from a sales appraisal dated 17 February 2017: see Exhibit F. The latter document does not state as at what date the properties were viewed and the plaintiff's evidence was that the estate agent had inspected them in late 2015: see T128.5 – T128.23. No evidence was given of how the document came into being in February 2017, what instructions were given in respect of it, and how an inspection in December 2015 was translated into an assessment as at February 2017. Tanya's evidence of how she went on the internet to obtain figures for the two properties also raises concerns about the reliability of her $120,000 figure for Number 145. There is, however, in Tanya's evidence, an appraisal by Core Logic RP Data valuing Number 143 at $179,168 as at 25 March 2017. There is an email from Mr Mitch Halpin, a real estate agent (at p 13 to the Executor's affidavit of 31 July 2017) showing valuations for Number 143 at $170,000 and Number 145 as $70,000. The report explains how the valuations were arrived at. The $170,000 figure is very close to the Core Logic figure, giving me some confidence in Mr Halpin's figures for both Number 143 and Number 145. Taking all matters into account, I shall proceed on the basis that Number 143 is worth $160,000 and Number 145 worth $50,000 (it has a carport and shed, but no house, which is the explanation for the significant difference in value). 5. Marg claims that she contributed work to the improvement of Number 143: see paragraph 6 of her affidavit of 21 April 2017. Her evidence is corroborated by Mr Kevin Frost's evidence: see his affidavit of 6 May 2017, and I accept it. 6. Marg would like to continue to travel around Australia as she and Brian had done in the ten years before his death. She said if she did move to a retirement village later in her life she would like to move to one in Orange, where her children reside. 7. Marg's assets, she says, are: a Holden Captiva ($26,000), household goods ($4,000), a bank account ($2,000) and jewellery ($2,000), being a total of $34,000. She now owns no real estate. She says that she spends approximately $1,300 per month on food and other items (see annexure B of her 9 November 2016 affidavit), which was not challenged. 8. I have referred to the retirement home issue. Marg's evidence includes the costs of retirement homes in Orange (see: Exhibit A pp 29 – 70 and paragraph 10 of her affidavit of 31 March 2017) these range from $200,000 to $400,000 (maximum refundable deposit), but single rooms, unshared, are available for a 50% deposit, i.e. $200,000 with a daily payment of $31.50, and a larger room for $225,000 plus $35.51 per day or $498.50 per fortnight. In Broken Hill a single room with private ensuite is available for $270,000, or with a daily payment of $46.45 or a combination of both: see the last page of Exhibit 1. 9. Tanya says the relationship between Marg and Brian was strained and that Brian wanted to end it in 2009: see paragraph 16 of her affidavit. Marg agrees that there was a period in which she moved out of Number 143, but she says that separation was short-lived. Tanya gives evidence of negative comments made by Brian about Marg and their relationship, but the fact is they were together until his hospitalisation a few months before his death. 10. No submissions were made concerning the credit of the witnesses notwithstanding that there was a conflict of evidence between Marg, on the one hand, and Craig and Tanya, on the other. Cross examination of Craig was quite limited and I have no reason to doubt his honesty. Both Marg and Tanya were less impressive as witnesses – I found Marg's evidence about her relationship with Mr Chandler and about the keys to the safe unreliable and Tanya's evidence about her own financial position, impacted on her reliability. 11. In his affidavit Craig said that he had a conversation with Marg in June 2015 in which she asked him to tell Brian to give her the keys to the shed. Craig was aware that Brian kept the keys to his safe in that shed. Craig says that he had a conversation with Marg at the hospital in June 2015 in which she said she "got the shed keys from him while he was away with the fairies" and that he had another conversation with Brian and Marg in the hospital intensive care ward (see: paragraph 20 of Craig's affidavit of 29 March 2017): My Dad: "Give Craig the shed key to hold for the time being" Margaret: "No! No I am not! Why? Why?" My Dad: "I want him to have a set" Margaret: "No! I am not going to! All I get in your will is to live in the house. That's all. It's bullshit!" After that Margaret calmed down a bit but did not give me the keys. 1. I find that these two conversations occurred and do not accept Marg's evidence that she did not know what was in Brian's will before he died. I also think the conversations explain that Marg obtained the key to the shed from Brian and was therefore able to find the keys to the safe, and that this occurred in or before June 2015 and not shortly before Brian dies, as she asserted in paragraph 20 of her affidavit of 21 April 2017. Tanya says that she observed Marg accessing the safe (see: paragraph 36 of Tanya's affidavit of 29 March 2017), which Marg denied. 2. Neither of these factual matters, however, go to any remaining issue in the case because it was not contended in final submissions that Marg had removed money from the safe, and the fact that she knew what was in the will before Brian's death and, on Craig's version, tried to have Brian change his will, is irrelevant. 3. Tanya was married but is divorced from her husband, although they continue to live in the same house. The house is worth $400,000 but is encumbered by a $250,000 mortgage, and it is owned jointly by Tanya and her ex-husband. Tanya works part-time as a travel consultant earning $2,900 a month. It became apparent in cross-examination that her statement of monthly expenditure was somewhat inflated: see T112 – T113. Apart from the house, she has few other assets which are exceeded by her liabilities: see p 383 of Exhibit A. Tanya has a twelve year-old son and she would like to be able to buy a house worth $450,000. She says that she does not have the funds to embark upon Family Court proceedings to obtain a property settlement or, to force a sale of the jointly owned property. 4. Craig is divorced and lives alone, but has a daughter and step daughter from his former marriage. His daughter has children. He does not own his own house, but is in steady employment on a salary that was last financial year $121,000. He would like to buy a house which can accommodate his children on visits. His assets (including his super fund) exceed his liabilities by approximately $120,000 (see: pp 391 – 393 of Exhibit A). 5. Tanya and Craig have been acting as co-executors of the estate since December 2015. They have not sold any of the assets of the estate. Two of the properties of the estate, Number 143 and Number 63, suffered hail damage and Tanya, having received notification of the damage, has contacted the insurer of the properties and set out about ensuring that that damage is rectified. In relation to Number 143, Tanya embarked on this after notification from Marg. 6. There is, as is evidenced by the affidavit material, hostility and dislike between the defendants and Marg. Tanya has described Marg in very derogatory terms. 7. The defendants have, through their counsel, accepted that Marg is an eligible person for the purposes of s 59 of the Act and that the will does not make adequate provision for Marg because she could not use the property as security for a bond should she need do so, at some time in the future, to take up residence in a nursing home. 8. Mr Bilinsky proposed that there should be what has come to be known as a "Crisp order". The name comes from Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) and more recent examples of it can be seen in Johnson v Wright [2012] NSWSC 879 and O'Leary v O'Leary & Eccles [2010] NSWSC 1347. In Milillo v Konnecke [2009] NSWCA 109, Ipp JA, with whom MacFarlan JA and Sackville AJA concurred, said at [47] – [48]: [47] A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff's benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to "cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital". [48] Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff's use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a "portable life interest". 1. The Crisp order, it was offered, should be over Number 143 and over Number 63 and Number 63A, with the intent also that Marg would receive the rent from Number 63 and 63A during her lifetime (i.e. $260 per week on present rentals). In addition, the defendants offer a legacy of $50,000 (in lieu of the $15,000 for which the will provided). 2. The annual cost of outgoings on the property and insurance is $3,600. 3. Mr Ellison contends that a Crisp order is not appropriate. His primary contention is that Marg's relationship of 30 years with Brian warrants a more extensive provision than a life estate in Number 143, even with the benefit of a Crisp order. He also contends that the poor relationship between the parties militates, in a practical sense, against such an order because not only is there acrimony, but in relation to the commercial properties over which the defendants are offering to include in the Crisp order, the defendants would have no real incentive to ensure that vacancies are filled promptly. Further, he contends that if Marg received $260 per week from Number 63 and 63A it will take her over the threshold for income, leading to loss of her pension. Mr Bilinsky accepted that the combined income of $260 per week could well do that, and hence indicated that the Crisp order could be limited to one of the two properties in Oxide Street. 4. Marg seeks the transfer of Number 143 and Number 145, the Nissan vehicle, the caravan, and an amount of $135,000. Number 145 is vacant, except for a large storage shed and carport, and is used as an additional outdoor living area, garaging cars, the caravan, a garden and to store wood and water tanks: see T133.5 – T133.9. The water tank provides additional water to Number 143. The Nissan is now worth $17,800, and the caravan $15,000 as at June 2016. The caravan, which was jointly owned by Brian and Tanya, passed to Tanya on his death. Marg's evidence in relation to the Nissan is that she contributed half of the $33,000 purchase price for the Nissan (see paragraph 17 of Marg's affidavit), being $16,500, and the defendants say she contributed only $3,500 (see paragraph 20 of Tanya's affidavit and paragraph 15 of Craig's affidavit). Neither competing assertion regarding the Nissan was challenged in cross-examination, nor established with documentary evidence. In light of the fact that Brian purchased a Holden Captiva for Marg, which remains in her name and which she values at $26,000 in her summary of assets and liabilities, this offsets any contribution by Marg to the purchase of the Nissan. Mr Ellison contends, however, that Marg needs the Nissan to tow the caravan. Since Marg will not receive the caravan she does not need the Nissan for that purpose, and even if she did I do not think that Brian was required to bequeath that to her. 5. The total value of the real estate, shares and cash, and less legal costs and the Elstone legacy, (using the same figures for Number 143 and Number 145 that I have used above) is $880,000. The total value of the claim that the plaintiff makes (using those same figures and excluding the Nissan and the caravan mentioned in the previous paragraph) is $345,000. 6. Mr Ellison submitted that Marg's claim is not unreasonable or disproportionate for a de facto wife of 30 years. Mr Ellison quite properly placed emphasis on the fact that the Court is required to consider the needs of an eligible person at the time of the hearing. 7. There have been many iterations of the matters which the Court must take into account in deciding what provision ought be made for an applicant where the Court has determined (or, as here, where it has been conceded) that the will has not made adequate provision. 8. In Life v Hall [2016] NSWSC 316, Hallen J at [60] – [122] summarised the cases and principles applicable to ss 59 – 62 of the Succession Act. One matter, which his Honour touched upon in that summary, and on which Mr Bilinsky concentrated his attention, is the need for the Court to have due regard to the principle of testamentary freedom. Hallen J deals with this at [102] – [107] and reference should also be made to what was said in Alexander v Jansson [2010] NSWCA 176 at [20] per Brereton J (with whom Basten JA and Handley AJA agreed) citing Re Fulop (1987) 8 NSWLR 679 and Stewart v McDougall unreported (NSWSC Young J 19 November 1987) – i.e. that the Court should not seek to remake the will, but only alter it to the extent adequate provision is to be made for the eligible person and see Vigolo v Bostin (2005) 221 CLR 191 at [13] – [25] per Gleeson CJ, and Callinan and Heydon JJ at [113] – [121]. Reference should also be made to what was said by White J, as his Honour then was, in Slack v Rogan [2013] NSWSC 522 at [127]. 9. I am very mindful of the fact that Brian did not want to extend the scope of his bounty to Marg beyond a life interest in Number 143 and a very small legacy. Although Marg does not accept all of the factual assertions made by Brian in his statutory declaration (see: paragraph 13 of Marg's affidavit), most of the matters there recorded are not in dispute. Those that are in dispute have not been established by independent evidence to be incorrect and I am persuaded that the information he was proceeding upon was materially correct. The Court is required to bear in mind and respect the wishes of a testator, see Salmon v Osmond [2015] NSWCA 42 at [72] per Beazley P, with whom McColl JA and Gleeson JA agreed, but the Court is also required to consider the matters laid down in the Act and determine the matter in accordance with its requirements. Once it is accepted that the provision that he made in the will was inadequate, the options for an alternative provision are limited, although the Act does permit the Court to require provision to be made in "any manner the Court thinks fit": see s 65(2)(f) of the Act. I need to take into account that Marg was a de facto spouse of thirty years with, at the time of the hearing, very little in the way of assets. I also take into account, however, that the relationship with Marg was one of a separation of financial interests and unlike the more common arrangements typical of married couples, no doubt a reflection of the fact that when they started their relationship they had both been married before, and Marg had their own children. I also must have regard to the small size of the estate and the competing claims of Tanya and Craig: Foley v Ellis [2008] NSWCA 288 at [88] and Chan v Chan [2016] NSWCA 222 at [22] per Basten JA. 10. I shall comment on each of the matters to which the Court may have regard in s 60(2): 1. The applicant was the de facto of Brian for 30 years; 2. The competing claimants are his de facto and his two adult children, the principal beneficiaries of his will; 3. I have referred to the nature and extent of the estate; 4. The applicant has very little financial resources of her own. This in part is a result of her having sold her house in 2005 and used the proceeds, in part, for her son and, in small part, for her own benefit; 5. The applicant is not cohabiting on any permanent basis with any person at present; 6. Not relevant; 7. The applicant is 71 years of age; 8. The contribution by the applicant to Brian's property or his welfare. The applicant has not provided any funds towards the assets owned by Brian. She has contributed to their shared expenses (food and the like). She has not had to care for Brian for any lengthy period; 9. Brian did provide $15,000 for Marg's son some years ago, but otherwise made no provision; 10. I have referred to the testamentary intentions of Brian; 11. Maintenance of the applicant: the deceased and the plaintiff maintained separate bank accounts and kept their property interests separate; 12. There is no other person liable to support the applicant; 13. Nothing was put by Mr Bilinsky as to the character or conduct of the applicant which would undermine her claim; 14. Not relevant; 15. Not relevant; 16. Although it may well be part of what needs to be considered in (b), I do see as important the fact that the defendants are themselves of limited means, Brian had a clear wish to see their position improved by the bequests he made to them. Another matter of relevance is that his provision of a life interest in Number 143 to Marg was conditional upon her not remarrying or entering into a new de facto relationship. 1. Whilst I regard a Crisp order over Number 143 as an approach which would come closest to reflecting the wishes of Brian, it has three specific drawbacks. The first is that it will require the plaintiff to be a tenant of the property for a very long period, with the defendants having responsibility for the upkeep of the premises and payment of rates and insurance over that period whilst the plaintiff resides in it in circumstances where there is undoubted hostility between the plaintiff and the defendants. Secondly, it will not provide funds to pay the rates and insurance or maintenance, all of which are presently required by the will to be paid by Marg. Thirdly, it does not provide the plaintiff with enough money to obtain alternative accommodation in a nursing home or retirement village. 2. Taking all matters into account and recognising that there are problems with any of the limited alternatives, I have come to the view that the appropriate outcome is: 1. Number 143 should pass to the plaintiff in fee simple. 2. The provision out of the estate to the plaintiff of a loan of $120,000 to enable the plaintiff to create a fund to maintain the property (Number 143) and pay rates, taxes and insurance and, in part, to assist the plaintiff in the future to obtain alternative accommodation. 3. The plaintiff to charge Number 143 with the repayment of the $120,000, and interest thereon at the RBA cash rate of interest from time to time, on the sale of Number 143. 4. In the event that Number 143 is to be sold in order to fund alternative accommodation for the plaintiff, the defendants must accept, in lieu of the charge over Number 143, an equivalent charge over any property purchased by the plaintiff or over any right of the plaintiff to a return in whole or in part of the proceeds from the sale of Number 143 and such of the loan funds as have not been expended as have been paid by her to a nursing home or retirement village. 5. The legacy to the plaintiff should be increased from $15,000, provided in the will, to $40,000. 6. The loan and the increased legacy will need to be provided out of residue. 1. The provisions set out in [41], in lieu of the entitlement in the will, do not provide for the benefit to the plaintiff to only continue for so long as the plaintiff does not remarry or commence a new de facto relationship. Nothing was said about that condition contained in the will in submissions, and I understood that it was not sought to be imposed through the Crisp orders proposed by the defendants. 2. The benefits thus to be provided to the plaintiff are: 1. A property worth $160,000 2. A loan of $120,000 that will not have to be repaid until after her death and that will earn interest, that effectively provides for the payment of rates, taxes, insurance and maintenance of the property and also some of which will assist her to obtain retirement or nursing home accommodation. 3. A legacy of $40,000. It will leave each of the defendants with $280,000 in the short term and $340,000 in the long term. 1. I understood that there was agreement that the costs of these proceedings of both the plaintiff and defendants, on an indemnity basis, are to be paid out of the estate. 2. I will hear the parties on precise form of orders that will reflect the provisions set out in [41]. If the parties are mutually agreed upon any different formulation of the provisions that will better suit their clients collectively, I am prepared to give consideration to that alternative formulation. ********** 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. Decision last updated: 26 September 2017