Rowe v Van Bergen [2002] NSWSC 717

New South Wales Supreme Court

CITATION : Rowe v Van Bergen [2002] NSWSC 717 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2275/01 HEARING DATE(S) : 22/05/02 and 23/05/02 JUDGMENT DATE : 15 August 2002

PARTIES : Jeanette Rose Rowe v Rosemary Van Bergen JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Ms C. Morris for plaintiff Mr R.B. Wilson for defendant SOLICITORS : Bowring Macaulay & Barrett for plaintiff Michael Slattery for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by a de facto partner. Effect on s 9 considerations of an agreement not to make a claim. Claim to designate property as notional estate. Effect of an early compromise of the proceedings. DECISION : Paragraph 79

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Acting Justice Macready

Thursday 15 August 2002

2275/01 Jeanette Rose Rowe v Rosemary Van Bergen JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late James Ernest Charlesworth who died on 25 October 1999 aged 71 years. The deceased was survived by the plaintiff who alleges that at the date of death of the deceased she was living with him as his de facto partner. The deceased was also survived by seven of his children. One of those children died after the date of death of the deceased. The last will of the deceased 2 The deceased made his will on 16 November 1992. He appointed his daughter, the defendant in these proceedings, as executor. He gave the whole of his estate to his children in equal shares as tenants in common. The estate of the deceased 3 The deceased owned a property at 35 Ashwood Road, Wilton which was valued at the date of death at $450,000 and a motor car worth $30,000. The balance of his estate consisted of certain insurance policies and funds on deposit which amounted to $511,713. In due course the real estate was sold for $465,000 dollars and the funeral expenses have been paid. The estate has now been distributed apart from a sum of $53,863.51. The Subaru car was retained by the executor until October 2001 when it was sold for $28,000. She holds that sum in a separate account in trust for the estate. Both parties have incurred costs in this matter. The defendant's costs are estimated at $43,000 dollars and those of the plaintiff at $55,117. A short history of the family 4 The deceased's wife died on 30 September 1992 and it was on 16 November 1992 that the deceased made his will in respect of which probate has been granted to the defendant. The testator and the plaintiff first met in January 1993. The deceased and the plaintiff apparently commenced to see each other in July 1993 and at that time the plaintiff met the deceased's brother. According to the plaintiff it was in October 1993 that the plaintiff and the deceased commenced a sexual relationship. According to the plaintiff it was in November 1993 that she started staying with the deceased on one or two nights a week. 5 The plaintiff in her evidence suggested that in 1995 she started to live with the deceased for about five nights a week and at that time she transferred her employment to Braeside to be closer to the deceased's home. In October 1995 the deceased and the plaintiff took a holiday in New Zealand when they visited the plaintiff's daughter and her family. In 1996 the plaintiff and the deceased had holidays in Victoria and Jervis Bay. In March 1997 the plaintiff and the deceased spent a holiday in Tasmania and, according to the plaintiff, thereafter they commenced living together on a full-time basis. In 1998 they had further holidays together in Jindabyne and Fraser Island. 6 In August 1999 the plaintiff and the deceased travelled to Mount Isa and visited friends. At about this time the deceased gave the plaintiff, according to her evidence, an engagement ring and they announced their engagement. On 25 October 1999 the deceased died. The plaintiff moved out of the home in November of that year and a Grant of Probate was made on 15 December 1999. 7 On 16 March 2000 there was a partial distribution of the estate totalling $217,068. On 17 April 2000 there was a further distribution totalling $140,000. A further distribution occurred on 26 April 2000 totalling $38,300. A notice of intention to distribute the assets of the estate was published on 5 July 2000. On 14 November 2000 a final distribution of $450,563 was made. 8 The summons commencing the proceedings was filed on 23 April 2001 which was almost the last day for making the application. On that day there was delivered to the plaintiff an offer to put into effect a settlement of the plaintiff's claim which is said to have arisen as a result of some discussions between the plaintiff and the defendant after the death of the deceased. Eligibility of the plaintiff 9 The plaintiff alleges that she is an eligible person as she was living with the deceased in a de facto relationship at the date of death. In the alternative she says that she is an eligible person under section 6 (1)(d)(ii) in that she was part of the household of the deceased and partly dependent upon the deceased. I will first deal with whether she was the de facto partner of the deceased at the date of death. 10 The Family Provision Act picks up the definition of a de facto relationship which appears in the Property Relationships Act 1984. The definition in that Act is as follows: -- "4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(a) who live together as a couple, and (b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)--(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 11 Apart from the provisions of sub-clause (1) the definition merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677. 12 I will turn to the various headings referred to above. The duration of the relationship 13 There does not seem to be much doubt that the deceased and the plaintiff met in 1993 and that they commenced a relationship in July 1993. There were no breaks in the relationship although it varied in its nature until the death of the deceased. The nature and extent of the common residence 14 This is a matter which was substantially disputed in the evidence. It is clear that for the first few years from 1993 to 1995 that the plaintiff would only visit the deceased for one or two days a week. In 1995 she says that she used to live there with the deceased for about four to five days each week. The plaintiff's position is that in April 1997 she commenced living with the deceased on full-time basis. There were a number of external factors which affected this matter. One of them was that she had a need to go back and care for her son who was schizophrenic. This son, who was known as Lance, had been living in the plaintiff's home since 1983. Apparently he left home in 1990. There were many witnesses who gave evidence on the extent of the residence and some other independent evidence. Of importance is the evidence of Noeline McPherson who lived at the deceased's home in May and June 1999 and of Robert Charlesworth who would stay overnight once a fortnight in the first half of 1999. They were in a position to observe when the plaintiff was present. A consideration of this evidence demonstrates that by the date of death they were living together at least four to five days a week. Sexual relationship 15 The plaintiff alleges that she and the deceased commenced a sexual relationship in October 1993 and that this continued until his death. I am prepared to accept the plaintiff on this aspect particularly given the detailed evidence about the time they spent together and their general family activities which are well documented and photographed. Financial interdependence 16 There were a number of payments made by the deceased for the parties' activities. In particular the deceased paid for numerous holidays and also purchased a vehicle for use on those holidays. The plaintiff occasionally purchased groceries and from time to time paid household bills for the deceased from funds provided by him. There does not seem to be any joint sharing of income and it is to be noted that the parties each had their own houses and bank accounts. The ownership use and acquisition of property. 17 As I have mentioned the plaintiff and the deceased each had their own homes which they kept. The plaintiff allowed her home to be used by a number of members of her family. In June 1998 there was a proposal for the purchase of a property at Mudgee but the deceased decided not to go ahead with it. The deceased bought a car so that he and the plaintiff could use it to go on trips together. He bought this particular type of car rather than a small truck which would have been better suited for his work. Children 18 The parties had no children together and the deceased's children were all adult and not living at home. Performance of household duties 19 It is clear that the plaintiff carried out some cooking and other household duties. The deceased also continued cooking often expressing a view that he did not like the plaintiff's cooking. He also did his own washing. Mutual commitment and mutual support 20 There is evidence of some support. For example the support the deceased gave the plaintiff after the death of the plaintiff's son in February 1999. The plaintiff assisted the deceased when he injured his thumb in January 1999 when she took him to hospital for physiotherapy. The nature of the relationship changed over time. I will refer to this aspect in more detail later. However, it seems clear that the deceased himself did not wish to have the plaintiff living at his home as much as she did. He certainly wanted her to be at his home with him on a number of days but not full-time. One other important matter which touches on this aspect is the question of the engagement which was said to have occurred in August 1999. There is no doubt that the deceased gave a ring to the plaintiff. This was a ring which used to belong to his wife. There is sufficient evidence for me to conclude that the deceased had the plaintiff believe that they were engaged as there are many statements by witnesses who spoke of congratulating the couple on their engagement. This evidence included relatives of the deceased such as grandchildren. The deceased when in the presence of close friends tended to play down the engagement by describing the ring as a "friendship" ring. I have no doubt that the plaintiff felt a commitment to the deceased and a stage may have been reached where the deceased agreed to the engagement but did not wish it to go any further. There is no suggestion of any day being set for a wedding. Reputation and public aspects 21 The deceased and the plaintiff were regular parishioners at the Catholic Church at Douglas Park and together assisted with fundraising functions. It also clear that the plaintiff and the deceased participated as couple at numerous family gatherings. There is extensive photographic evidence of the weddings, baptisms, Fathers' and Mothers' Day gatherings, birthdays and Christmas dinners between 1994 and 1998. The photographs also show them together with friends with whom they stayed on the numerous holidays they took over the years. There is also evidence of cards and congratulations on the engagement which show them as known to be together as a couple. Did a de facto relationship exist at the date of death? 22 I have concluded above that the plaintiff was by the date of death of the deceased living with him at least four or five days a week. There are substantial factors which illustrate the public nature of the way they conducted themselves as a couple. Although they kept their property separate and although the deceased had reservations as to the extent to which he wanted the companionship of the plaintiff, it appears fairly plain that the deceased and the plaintiff at the date of the deceased's death were living together in a de facto relationship. One should not lose sight of the fact that there is no suggestion in the evidence that either party had relationships with other people during this period. 23 In case I am wrong on this aspect I will also consider whether or not the plaintiff is an eligible person as a result of her living in the household of the deceased and being in part dependent upon him. Given the extent of the period that they spent together it is fair to say that the plaintiff was part of the household in which the deceased was a member. 24 In Ball v. Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency His Honour, Mr Justice Samuels, said the following at page 490: "His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v. Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

25 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together. He referred to the submission that each of them in the case of a joint mortgage could have only received a partial benefit. At page 492 he addressed the argument in these terms: "Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of "needs" in the Liquor Act 1912 as "reasonable demands or expectations": Toohey v. Taylor (1983) 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v. Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable and in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. "

26 This passage emphasises the factual nature of dependency, be it financial or otherwise.

27 In Beney v. Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them. 28 In Petrohilos v. Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the court had the following to say: "I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v. Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'. If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v. Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v. Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

29 In McKenzie v. Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial economic or material dependency, not a mere emotional dependency". Of importance in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant "more than minimally" or perhaps "significantly". 30 In Williams v. Legg (1993) 29 NSWLR 687 the Court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive. 31 It was submitted that the plaintiff was dependent upon him particularly for accommodation in the latter part of their relationship. The evidence shows that it was difficult for her to spend time at her home as it was substantially occupied by members of her own family. In the circumstances I am satisfied that she was dependent upon the deceased for accommodation. In these circumstances the plaintiff is an eligible person under s 6(1) (d) (ii) of the Act. 32 However, it is necessary under s 9 (1) of the Family Provision Act in respect of this category of eligible person that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 33 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:- "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

34 These principles have been applied at first instance for many years. There has been in recent times further attention given to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

35 In this case it is clear that there was a relationship of some six years' duration. One of the features about the relationship which I will refer to later is the clear expectations and understanding between the plaintiff and the deceased that no claim by the other would be made upon their respective estates. The evidence points to the parties making this very clear at the start of their relationship as well as at the time of the engagement between the plaintiff and the deceased. The plaintiff herself gave evidence of having discussed these matters in 1995 and also in September 1997. When recounting that conversation she makes it plain that she said to the deceased on both occasions that she wanted the deceased's children to have the farm because the deceased and his wife had worked hard for it. There was no evidence to suggest that the plaintiff knew that the deceased had other substantial assets and insurance policies. All she could have known was that the deceased was able to meet the expenses of their occasional trips. 36 On the traditional approach the existence of this agreement is of some importance. In the face of an agreement between two people that one would not make a claim against the others estate, it is hard to suggest that the plaintiff was a natural object of testamentary bounty. This is particularly so as one of the discussions took place only a month before the death of the deceased. I think that the factors warranting the making of the application in the traditional sense are not present. On the alternative view, namely, whether the application has prospects of success, it is necessary for me to consider the matter before finally deciding this aspect. The plaintiff's claim for provision

37 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach a Court must take. At page 209 it said the following:- "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

38 I turn to consider the situation of the plaintiff. The plaintiff is currently 59 years of age. She has one of her children together with his de facto partner and their children living with her. They are not dependent upon her. The plaintiff is a qualified registered nurse and she continues to work in that profession. She is in reasonable health although she takes medication for high blood pressure as well as to treat depression and anxiety. She has suffered from asthma which she can control using Ventolin. 39 The plaintiff owns her own home at 40 Flourite Place, Eagle Vale. Those premises were valued two years ago at $150,000. The amount owing on the first mortgage over the house is $16,000. She also has a second mortgage which enabled her to enter into a joint purchase of a property with a son. That second mortgage is about $49,000 and her son is making the repayments on that mortgage. She has a 1/5 share in some vacant land at Bonnels Bay worth $12,040 and she also has a 1/5 share in a property at Mirrabooka having a value of approximately $26,000. Her car, an 11 -year-old Pajero is no longer registered as the motor has "blown up" and needs to be replaced at a cost of $3,500. She and her son jointly own a factory unit in which he carries on a business of repairing radiators. The unit is worth approximately $150,000 and is subject to a mortgage of $100,000. The plaintiff has other miscellaneous debts of about further $13,500. 40 The plaintiff continues to work as a nurse and her average gross weekly income at this time is approximately $937. Her expenses substantially exhaust all of her income. The plaintiff is aged 59 and she would like to retire as soon as possible. The present value of her superannuation on retirement is $96,345. That will increase to $191,733.67 if she remains working up to the aged of 70 years. Given the difficulties she has with working in her profession it is unlikely that she will be able to continue until the later age. 41 It is necessary to have regard to the nature of the relationship between the plaintiff and the deceased. Clearly at the commencement of the relationship the deceased was lonely and wanted the companionship offered by the plaintiff. It was only after some years that the frequency of contact increased. There is very detailed evidence from independent witnesses and from members of the deceased's family of what the deceased wanted from the relationship and how he saw it developing. One of the things that happened was that there was animosity towards the plaintiff by a number of the deceased's children. This led to a reduction in their contact with the deceased or alternative arrangements were made so that they visited the deceased on occasions when the plaintiff was not present. There were changes in the usual drinking night at the local hotel and arrangements were made for the children to see the deceased when the plaintiff was not at the deceased's home. 42 This continued throughout the period of the relationship and indeed at one stage the deceased had his daughter ring up and suggest to the plaintiff that she should not come around so much. Ultimately, however, the relationship progressed to the stage of an engagement. I have no doubt that there was an engagement even though, on the plaintiff's evidence, the deceased made it perfectly plain he did not want to marry and refused to make a commitment to do so. Although the relationship matured into something more than what the deceased originally intended this really only happened shortly prior to the deceased's death. One cannot look at the total period of the relationship by itself. One must have regard to the fact that for some time it was relationship to provide some companionship rather than mutual commitment. 43 Another matter which has to be considered is the arrangement that clearly existed between the parties that the plaintiff would not wish to benefit from the deceased's estate. That no doubt gave the deceased some comfort as he clearly wished his children to benefit from his estate. All this indicates a relationship which changed over the years and was founded upon expectations by the deceased that the plaintiff did not wish any part of his estate. It also should be noted that the relationship was one of a de facto partner. This puts a different light on the arrangement as it is not the same as the public commitment expected with a marriage. See Marshall v Carruthers [2002] NSWCA 47. Although there was the engagement the parties did not marry prior to the death of the deceased and I have to consider the relationship on the basis that they were not married. 44 There is no evidence to suggest that the plaintiff contributed to building up the estate of the deceased. She in fact received substantial benefits during the course of the relationship as the deceased paid for most of the holidays that they took together and purchased the car that she wished to use for that travel. 45 It is also necessary consider the position of others who have a claim on the bounty of the deceased. In this case it is his seven children one of whom died after the deceased's death. That child's children now take her interest in the estate. The defendant Rosemary Van Bergen 46 The defendant is aged 48 years, married and has six children aged between 14 and 30. Two of the children are still dependent and live with her and her husband. She requires constant medication for a medical condition which gives her an irregular heartbeat. She has been hospitalised for this condition and she is likely to need medication for this in the future. She has not worked and she is at home with her family while her husband Frank works as a boilermaker. Recently he has been off work with an injury and the family income has been substantially reduced. Her husband's income from his work is approximately $480 per week and the family's expenses far exceed this amount. Recently they have been living on capital as a result of the distributions from the estate. 47 The defendant and her husband own a property at 120 McArthur Drive, Wilton, valued at $420,000. They have two cars worth a total of $22,500, the furniture and personal effects together with cash of approximately $15,000. Fortunately they have no liabilities but they recently paid substantial sums for expenses connected with a marriage of two of their daughters. They face a very uncertain future because the defendant cannot work and her husband's work is very irregular. At one stage they considered selling their home to make ends meet. 48 The defendant, like most of her siblings, had a good relationship with her father during his lifetime. She did not contribute to build up his estate and from time to time her father gave her vegetables and eggs from his farm. The defendant helped her father after her mother's death with his financial affairs and was authorised to operate on his account. John Francis Charlesworth 49 John is presently aged 50 and is married with three children. One child who is of school age still resides with John and his wife. He is employed as a fitter and turner which has been his occupation for some 30 years. He receives a net weekly wage of $800 from which he pays his expenses of $668.80. They own their home at 90 Ashwood Road, Wilton valued at $350,000 and they have two old model cars, furniture and personal belongings. In addition they have term deposits of $94,000. 50 John had a good relationship with his father although he did not like the way the plaintiff took over the conversation when he was in the presence of his father. The deceased did not make any provision for him during his lifetime nor did John contribute to his estate apart from helping his father from time to time in particular in with repairs to his truck. 51 John has superannuation having a value of about $130,000. Graham Ernest Charlesworth 52 Graham is aged 46 and is married with five dependent children. The children are aged between 11 and 19. He is employed as a pastor and receives approximately $700 per week after-tax. His wife is employed at a retirement village and receives $350 per week after-tax together with a family allowance supplement of $75 per week. These sums are substantially used in their expenses which is not unnatural given the number of children. They have a home at 21 Wisdom Road, Curran's Hill valued at $240,000, two cars worth $34,000 and other items of personal effects and household furniture. They have liabilities on their home and on one of the vehicles of $186,000. 53 Graham, as with his brothers and sisters, also had a good relationship with his father and he continued contact even when the plaintiff was present. Strangely the deceased never mentioned to him that he was engaged but there could have been many be reasons for this. Bernadine Mary Lloyd 54 Bernadine is 44 for years of age and is a single mother raising two teenage sons. One of these sons is in employment. Bernadine is employed as a child carer and earns $550 per week which is totally taken up with her expenses. She currently owns the home in which they reside valued at $155,000 and other property at 84 Old Hume Highway, Yerrinbook which she purchased with the money that she received from her father's estate valued at $141,000. She has a small car and personal effects and fortunately no liabilities. 55 She had a good relationship with her father and like her brothers and sisters she continued to make contact with him every few weeks. Noelene Margaret MacPherson 56 Noelene is 38 and has recently separated from her husband. She now lives in a home at Moss Vale with her five children and her husband lives at Hilltop. She receives a single parent pension of $603 per fortnight and also maintenance of $390 per month. That is consumed in expenses. Details of their assets are not available other than that each has a house and that their total mortgages amount to $320,000. She used the moneys which she received from her father's estate towards the construction of a kit home on the property at Hilltop where her husband now lives. 57 She had a good relationship with her father and continued to see him after the death of her mother. Robert James Charlesworth 58 Robert is the youngest child of the deceased. He owns a house worth $190,000 which does not have a mortgage. Although not married Robert has a partner and daughter aged five years and they are expecting another child. He has a car, motor bike and other personal property of no great value but he has retained the distributions made to him under the will and presently has money on deposit of $132,657. He was intending to use this to build a new house on his property as the existing house is in a poor state of repair and does not justify any further sums being spent on it. 59 He continued to have a good relationship with his father and often spent Friday nights at his father's home before he went to work on a Saturday. Bradley Bryan Lambert 60 Bradley is a child of the late Maria Lambert, one of the deceased's children, who died after the death of the deceased. Bradley is single and is employed as a laboratory technician at Liverpool Hospital earning an income of $36,450 per annum. He resides with his girlfriend and has used his bequest from his late mother's estate in order to exchange contracts to purchase a property. Apart from this his only other personal property is a motor car. Collette Fox 61 Collette Fox is 39 years of age and is a daughter of the late Maria Lambert. She is married with an infant child and is on paid maternity leave from her job as a registered nurse. Her husband works as a salesman and has a net income of $440 per week. Their home in Tamworth is worth $97,000 and they currently have a balance of $81,000 outstanding on the home loan. They have a car, house contents and a small number of shares. Their superannuation presently totals some $37,000. The distribution of $44,000 that Collette received from her late mother's estate was used to pay out a car lease, some personal loans and to reduce their mortgage. Joanne Lambert 62 Joanne Lambert is the daughter of Maria Lambert and is aged 16. She suffers from obsessive compulsive disorder which has a negative effect on her. She is looked after by her sister Collette and she receives a Youth Allowance of $288 per fortnight. She has personal effects and cash of about $48,000. She is studying to obtain a Retail Operations certificate and a Hospitality Certificate. Clearly it will be some time before she is established in regular employment. Graham Andrew Lambert 63 Graham is 26 years of age, married and his wife is expecting a child. He is a school teacher in Canberra and has a income of $1,717 a fortnight. His wife is currently earning $1,667 a fortnight and she is also a teacher. She will have to give up that occupation to take maternity leave without pay. They have a home at 19 Douglass Street, Spence in the ACT which they purchased for $256,000 and on which they owe $218,650. They have a car on which the outstanding finance is greater than its value and they have combined interest in superannuation of $15,000. The plaintiff's claim 64 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. There are a number of different matters put forward. By way of advancement she needs to spend $772 repairing a fence and $3,500 to replace the engine in her car. Probably there would be other expenses involved with getting the car roadworthy. She has the mortgages on her home one of which is being paid for by her son and as it was for his benefit he will no doubt continue those payments. She has other miscellaneous liabilities of $13,500. She is anxious to retire but cannot do so while she has these debts. Clearly she has a genuine requirement in this regard although I do note that she has substantial superannuation which would also assist when she does retire. She did not advance a claim for some provision for a capital sum in order to supplement her income. 65 The relationship between the plaintiff and the deceased is very important in any consideration of what would be an appropriate claim. She submits to the court that she should have a legacy of $100,000. I will not go into the detail of the relationship as I have referred to this earlier in this judgment. As I said although it was for a period of six years it varied in nature over that period. The agreement she made not to make claim on the estate of the deceased does not of course bar her making a claim. 66 Bearing in mind the superannuation which the plaintiff will be entitled to and looking at her needs in the medium term before she retires I would have thought that in the context of the estate as it was before being distributed, a legacy of $60,000 would be appropriate. It follows that on the alternative basis there would be factors warranting the making of the application. 67 The estate has been substantially distributed except for the two amounts of $53,028 and $28,000 referred to above. The defendant's costs of $43,000 substantially reduce the remaining estate and if there is in any order in favour of the plaintiff the balance of these funds will be insufficient to meet any such order. In these circumstances it is necessary to see whether any property should be designated as notional estate. The court can only designate property of a person who is a party to the proceedings for this purpose. The only person who is such a party is the defendant and the only property which she has which might be designated is her interest in the jointly owned home. 68 Section 27 of the Family Provision Act is in the following terms: "(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances." 69 There is a real question in this case as to whether or not any of the defendant's property should be declared to be notional estate. This arises because of the circumstances in respect of the agreement made immediately after the death of the deceased between the plaintiff and the defendant. I will now turn to the evidence that deals with this matter. The defendant gave evidence that on the day the deceased passed away the plaintiff said to her that she wanted to talk about the will and that she was expecting something. The next day they met again at the deceased's house and had a discussion on what the plaintiff wanted. This turned out to be the Subaru Outback, $20,000 to repay a loan on her house and $10,000 for accommodation. The defendant agreed to such payments and for the car to go to the plaintiff. The plaintiff agrees with this version of the conversation and there is also evidence from another daughter who heard the defendant and the plaintiff state that they had come to a resolution of the matter. Clearly there was an agreement that the plaintiff be paid $30,000 and receive the car of the deceased. 70 A few days after the conversation at which agreement was reached there was also another occasion when the plaintiff was at the property and asked if she could have an organ and a coffee table. Agreement was reached that she would have the organ and a coffee table both of which she took home. In cross-examination be defendant made it plain that she came to this agreement because the plaintiff had made it quite clear that unless agreement was reached she was not going to move out of the house. A few days after the agreement was reached she moved out of the house and the defendant then put the appropriate processes in train to sell the house that was sold in due course. 71 The defendant retained the car for some time until after the proceedings were commenced and it became apparent that the plaintiff wished to proceed with the action rather than accept the benefits under the agreement. The defendant then sold the car for $28,000 and lodged those funds in a separate account. She also kept the sum of $53,000 presumably so that she could pay the amounts due to the plaintiff. There was an attempt by the solicitor for the defendant to put the agreement between the plaintiff and the defendant into force by the submission of an appropriate deed incorporating releases under section 31 of the Act. The plaintiff's solicitor rejected that and proceedings were commenced on the last day for commencing proceedings. As has been indicated before distributions were made once the property was sold and before proceedings were commenced. However the defendant has retained the two amounts of $28,000 and $53,000 to the present day. 72 The question is whether the defendant could reasonably expect the plaintiff to honour her agreement to settle for the agreed amount. In cross examination the defendant conceded that the offer made to the plaintiff was contingent on her obtaining some legal advice. She also conceded that no agreement was reached between solicitors and that the settlement agreement had not been implemented in court. 73 There is no evidence from the plaintiff saying that she made the distribution in the belief that the plaintiff's claim had been resolved. She does not seem to have turned her mind to that matter and in cross examination she pointed out that her solicitor handed over the cheques and did not advise her not to spend the money. 74 In these circumstances there does not seem to be any basis for a reasonable expectation that the agreement could be relied upon. 75 I turn to consider the substantial justice and merits of the case in making or refusing to make the order. 76 The defendant and her husband have the difficulty of little income but this did not prevent them from spending $20,000 on weddings and giving $60,000 to their children. They have a small amount of cash ($15,000) and are fortunate in that they have no mortgage on their house. They have already had to consider selling because of their precarious position and any order which requires them to pay a large amount may force a sale of their home. 77 One of the matters that stands out is that what I have now decided is that the proper legacy that the plaintiff is to receive is what was agreed that she would get in 1999. The car was then valued at $30,000 and the agreed sum was $30,000. She has done no better that what was offered and which she accepted. Since then substantial costs have been incurred for no purpose. The plaintiff has caused the incurring of unnecessary legal costs and the defendant has distributed the estate without regard to the plaintiff's claim. Both the plaintiff and the defendant are at fault. 78 In these circumstances it seems to me that, although I should give the plaintiff a legacy of $60,000 and designate the defendant's interest in her house to cover any shortfall, there should be no order as to the plaintiff's costs. 79 Accordingly, the orders that I make are as follows:- 1. I order that the plaintiff receive a legacy out of the estate of the deceased in the amount of $60,000. 2. To the extent that this is not satisfied out of the estate I designate the defendant's interest in 120 McArthur Drive, Wilton as notional estate. 3. I make no order as to the plaintiff's costs to the intent that she bear her own costs. 4. I order that the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.

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