Paterson v Vaughn Charles Bunter as Executor of the Will of George Samuel Adolphus Bunter (Dec) & Ors [2000] WASC 83 (31 March 2000)

Last Updated: 7 June 2000

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PATERSON -v- VAUGHN CHARLES BUNTER as Executor of the Will of GEORGE SAMUEL ADOLPHUS BUNTER (DEC) & ORS [2000] WASC 83

CORAM : MILLER J

HEARD : 21 - 23 MARCH 2000

DELIVERED : 31 MARCH 2000

FILE NO/S : CIV 1460 of 1998

MATTER : Inheritance (Family and Dependants Provision) Act 1972

and

The Estate of GEORGE SAMUEL ADOLPHUS BUNTER (DEC)

BETWEEN : MYRA JEAN PATERSON

Plaintiff

AND

VAUGHN CHARLES BUNTER as Executor of the Will of GEORGE SAMUEL ADOLPHUS BUNTER (DEC)

First Defendant

VAUGHN CHARLES BUNTER

Second Defendant

JEAN ANN BUNTER

Third Defendant

JUSTIN DALE BUNTER

Fourth Defendant

OWEN JEROME BUNTER

Fifth Defendant

FLEUR LORELLE BUNTER

Sixth Defendant

Catchwords:

Inheritance Act, s 7(1)(f) - Meaning of "defacto widow" - Whether defacto widow in this case - Proper provision, s 6(1) - Limited right of occupancy of house on payment of rent - Competing claims upon estate by children of deceased - Turns on own facts

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6(1), s 7(1)

Trustees Act 1962, s 65

Veterans' Entitlements Act 1986, s 11

Result:

Further provision for plaintiff by way of lifetime entitlement to occupancy rent free

Representation:

Counsel:

Plaintiff : Mr I A Morison

First Defendant : Mr J A Chaney

Second Defendant : Mr J A Chaney

Third Defendant : Mr J A Chaney

Fourth Defendant : Mr J A Chaney

Fifth Defendant : Mr J A Chaney

Sixth Defendant : Mr J A Chaney

Solicitors:

Plaintiff : Glynn & Gray

First Defendant : Brian G Bennett & Co

Second Defendant : Brian G Bennett & Co

Third Defendant : Brian G Bennett & Co

Fourth Defendant : Brian G Bennett & Co

Fifth Defendant : Brian G Bennett & Co

Sixth Defendant : Brian G Bennett & Co

Case(s) referred to in judgment(s):

Case(s) also cited:

Alford v Public Trustee, unreported; SCt of WA; Library No 970151; 10 April 1997

Lambe v Director-General of Social Security [1981] FCA 171; (1981) 38 ALR 405

Luciano v Rosenblum (1985) 2 NSWLR 65

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566

Pavey v Pavey [1976] FLC 90-051

Perger v Public Trustee, unreported; SCt of WA; Library No 970071; 26 February 1997

Pontifical Society for the Propogation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9

Stone v Coleman, unreported; SCt of WA; Library No 960683; 3 December 1996

Svajcer v Public Trustee, unreported; SCt of WA; Library No 960298; 31 May 1996

Wrchowsky v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 970430; 2 September 1997

1 MILLER J: By originating summons the plaintiff seeks, pursuant to s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972, additional provision out of the estate of George Samuel Adolphus Bunter (Dec) ("the deceased"). That section is in the following terms:

"6.(1) If any person (in this Act called 'the deceased') dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 of this Act as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose."

2 The plaintiff claims to be a person entitled to make application for provision out of the estate of the deceased by reason of the fact that she is a defacto widow of the deceased within the meaning of s 7(1)(f) of the Act, which is in the following terms:

"(f) a de facto widow or the widower of the deceased who at the time of the death of the deceased was being wholly or partly maintained by the deceased, who was ordinarily a member of the household of the deceased, and for whom the deceased, in the opinion of the court, had some special moral responsibility to make provision."

3 The deceased died on 21 April 1994. He had been born on 3 June 1914 and was 79 years of age at the date of his death. He had been married to Olive Bunter on 28 March 1942 but separated from her on 4 July 1981 and did not live with her again prior to her death in September 1993. There was one child of the marriage of the deceased and Olive Bunter. That was Vaughn Charles Bunter, the second defendant. He was born on 27 April 1943 and was married to Jean Ann Bunter (the third defendant) in 1964. There are three children of that marriage, they being Justin Dale Bunter (the fourth defendant) who was born 21 October 1965, Owen Jerome Bunter (the fifth defendant) born 7 May 1968 and Fleur Lorelle Bunter (the sixth defendant) born 1973.

4 The plaintiff was born on 10 April 1923 and is 77 years of age. She was married to a Mervyn John Kibby in 1940 from which union there was a child, Rosemary Ann Taplin, born on 14 July 1941. The marriage was dissolved in about 1946 and she was then married to Alexander Francis Paterson in 1947. From that union there were four children born between 1947 and 1959. The marriage was dissolved in about 1975. In recent times the plaintiff has had little or no contact with any of her children. By late 1981 the plaintiff was residing in a flat in Shenton Street, Geraldton and it was in that year that she met the deceased. He was then living alone at 1 Cassia Street, Rangeway in Geraldton, that being a house he had occupied from about 1968. He had lived there with his wife Olive until they separated in 1981 and from the time he commenced living there he had ceased work and lived on a war pension. By the year 1981, when he first met the plaintiff, the deceased was 67 years of age and she was 58 years of age. At this relatively late stage in each of their lives they began seeing each other on a regular basis which reached a point where the deceased would stay overnight at the plaintiff's flat in Shenton Street, Geraldton, up to three times a week. On these occasions the plaintiff and the deceased slept together and had, what she described, as a "normal sexual relationship".

5 In about 1982 the deceased first suggested to the plaintiff that she move in with him at the Cassia Street house. According to the plaintiff, one of the reasons was that there was a big double bed in his room at the house and that would provide more comfort than for him to be visiting the plaintiff and sleeping in a single bed at her flat. There is some dispute as to whether or not there was a double bed at Cassia Street, the second defendant contending that in all the time he visited the Cassia Street property he never saw a double bed in the house. Other members of the second defendant's family have sworn affidavits to like effect. The sixth defendant has deposed to the fact that she visited the Cassia Street property on numerous occasions after her mother had left it and observed that the deceased slept in the second bedroom in a single bed as he had always done. This, she deposes, remained the case after the plaintiff moved to the Cassia Street property. On the other hand, the fifth defendant concedes that there was a double bed in the Cassia Street property, it being the bed used by Olive Bunter when she lived in the house. The fifth defendant's impression was that that bed had been moved to another house in Dean Street, Geraldton when Olive left and went to that address.

6 In any event, in or about 1983 - 1984, the plaintiff moved in with the deceased at Cassia Street. Whether there was then a double bed at the house I am unable to conclude, but I accept that from the time the plaintiff first began seeing the deceased on a regular basis there was a sexual relationship between them. Certainly I accept that when she moved to the Cassia Street property, whatever the position was in relation to beds, she and the deceased engaged in sexual relations. In or about 1986 the Cassia Street property was sold and the plaintiff and the deceased moved to a house at 239 Seventh Street, Wonthella, where there undoubtedly was a double bed in the main bedroom and in which I find the plaintiff and the deceased to have slept together until the year 1992. It is true that there was also a single bed in a second bedroom which was termed the plaintiff's bedroom, but I accept her testimony that this was a room in which she kept clothing and other personal effects and in which she sometimes rested on the single bed. I accept that the plaintiff and deceased slept together until the year 1992 and that there was a sexual relationship between them over that period. It was in the year 1992 that the deceased suffered, for the first time, a heart attack. He was then 78 years of age. According to the plaintiff, she moved permanently to the second bedroom following the deceased's return from a period of hospitalisation after the heart attack. She thereafter slept in a single bed in the second room, and she contends that it was on medical advice that the deceased was at risk from further heart attack in the event of further sexual activity that occasioned her to do this.

7 From the time the plaintiff first moved into the deceased's house she contributed to the various living expenses which were incurred by the two of them. She was in receipt of a pension and the deceased was in receipt of a pension. She paid half of all the bills which were incurred in relation to the running of the house, the money she contributed being added to a bill roll of money which was kept in a tin by the deceased. There is a live issue as to whether or not the plaintiff paid the deceased any money by way of rent. She contends vehemently that she did not pay rent at any time during the 10 years or so that she resided with the deceased. She concedes that there had been a tenant in the Cassia Street property prior to her moving in and that the tenant paid $25 per week rent. However, she contends that no such sum (or any sum) was ever paid for her by way of rent. This claim sits at odds with a statement made by the plaintiff in answer to a number of questions put to her by the Department of Social Security in November 1995. It had then come to the attention of the Department that the plaintiff had been living with the deceased and yet had been in receipt of a pension without any declaration of the fact that she had resided with the deceased. She was required to sign a statement setting out the basis of her relationship with the deceased and she did that, conceding that she had resided in a defacto relationship with him from about August 1985, although claiming that she was unaware that she was ever required to notify the Department of the relationship she had. In answer to a number of specific questions in a letter received from the Department of Social Security, one of which required advice of the amount of rent paid to Mr Bunter and when that had stopped, the plaintiff answered:

"I gave George $25 per week and ceased paying it when he had a heart attack about 1992 in April."

8 The plaintiff was asked in cross-examination to explain how she came to give this answer. What she said was that a Mr Abbott (a departmental officer) had suggested to her that if she stated that she paid a sum of rent to the deceased it might reduce the amount of money she was to be called upon by the Department to repay by reason of her continued receipt of the pension whilst living with the deceased. One of the numerous answers she gave was in the following terms:

"And do you recall whether you filled that document in with Mr Abbott helping your (sic) or by yourself? --- Mr Abbott, he did suggest that if I paid rent, it says I pay rent - he suggested that if I pay - said I paid $25 it might make it easier because they were charging me $10,000 for being a de facto."

9 Notwithstanding the answer that she gave to the Department, the plaintiff was adamant in her evidence that at no time had she ever paid rent to the deceased. I must say that I find her evidence in this regard to be difficult to accept for two reasons. The first is that it does seem unlikely that a delegate to the Secretary of the Department of Social Security would have encouraged the plaintiff to incorporate a false answer in a departmental document. The second is that the answer is specific in relation to the sum of money and the period of time to which it was paid. The answer is not, however, the end of the matter as I shall indicate when I come to deal with the question of the extent to which the plaintiff was dependant upon the deceased. It is of interest that in the responses to departmental questions the plaintiff indicated that the relationship between herself and the deceased was "that of a married couple and we were good friends". She added that she and the deceased had shared a bedroom until his heart attack in April 1992. The importance of these answers is that at the time they were formulated by the plaintiff in November 1995 she had made no claim pursuant to the provisions of the Act. The statements were not therefore self-serving, and indeed were against her interest, as is evidenced by the fact that she was required to pay a sum of money of the order of $10,000 to the Department.

10 The plaintiff and the deceased lived apparently happily together from the time of the deceased's first heart attack in 1992 until his death on 21 April 1994. They were to all outward appearances a married couple, as is deposed to by Dean Roy Beard, a neighbour in Seventh Street, Wonthella, who can recall meeting the plaintiff and the deceased when they moved together into their house at 239 Seventh Street in about 1988. The plaintiff and the deceased struck Mr Beard as "a very nice couple" although the deceased was described as "initially a bit gruff". Mr Beard's impression was that the plaintiff and the deceased were a married couple. He observed when visiting their home that there was a double bed in the front master bedroom and at nights he observed a single light in the house from that bedroom where he assumed both the plaintiff and the deceased were sleeping together. Although in cross-examination he stated that that single light remained on until 1994 when the deceased died (contrary to the testimony of the plaintiff that she had ceased to sleep in the double bed with the deceased in 1992), I accept the evidence of Mr Beard as supportive of the plaintiff's testimony that she and the deceased slept until at least 1992 in a double bed in the main bedroom at the front of the house. Attempts by the defendants to suggest that this could not have been the case and that the plaintiff at all times slept alone in the single bed in a separate room I reject.

11 I have referred to the fact that Mr Beard first thought the deceased to be a bit gruff. This, I conclude, accounts for the fact that members of the deceased's family were taken by surprise when they first saw a number of cards which the deceased undoubtedly gave to the plaintiff at Christmas and on the occasions of birthdays. These cards were tendered in evidence and it is only necessary to refer to a card given in Christmas 1988 in which the deceased addressed the plaintiff in the following terms: "To my darling Jean with all my love George 1988". The other cards were to like effect. They all illustrate that the deceased and the plaintiff had a very loving relationship (there is also an example of a card from the plaintiff to the deceased which is in similar terms). The extent of that relationship was clearly expressed only privately, although to outward public appearance (as evidenced by the testimony of Beard), the plaintiff and the deceased were thought to be a married couple. Although attempts were made by the defendants to describe or to categorise the plaintiff as merely a boarder in the deceased's house, I am of the opinion that the defendants well knew that the plaintiff and the deceased were living together in what is commonly known as a defacto relationship.

12 When after the death of the deceased the plaintiff made application for a war widow's pension with the Department of Veterans Affairs, the second defendant wrote to a claim's assessor at the Department, contending that the plaintiff was only a boarder in his father's house and expressing the view that he did not believe that they were in a defacto relationship. Ultimately, the plaintiff was granted a war widow's pension (notwithstanding an initial rejection of the application), it being accepted that she was a dependant as defined in s 11 of the Veterans' Entitlements Act 1986. A determination to that effect was made on 26 February 1996 with the pension payable from 17 August 1995. The contention of the defendants that the plaintiff was but a lodger in the home of the deceased sits uneasily with various cards written by the third defendant to the plaintiff and the deceased which were addressed "To Pop and Jean" and in correspondence from the sixth defendant in which she addressed the "couple" as "Grandpop and Jean". These communications lead me to the view that the defendants well knew that the plaintiff and the deceased were indeed in a defacto relationship.

13 Within the house at Seventh Street, Wonthella the plaintiff and deceased appear to have lived life as a normal married couple. I accept the plaintiff's testimony that she did the basic cooking and did all of the washing, ironing and housecleaning. I accept too that they enjoyed the company of each other and went out together from time to time, including shopping visits and occasional trips out of Geraldton. It is unnecessary for me to resolve the question how often the second defendant and/or other defendants visited the deceased. There is a difference of testimony on the part of the plaintiff on the one hand and the defendants on the other on this point, but it matters little as the fact is that from the beginning of 1991 the second defendant left Geraldton and moved to Perth, from where he had limited opportunities to visit his father in the following three years of his life. Nothing turns in my view on the extent to which the second defendant or any of the other defendants visited the deceased. It is sufficient to say that the deceased clearly regarded them as members of his family for whom he cared. In addition, I accept evidence that he deliberately chose to inform the defendants, or some of them, and only them of the existence of a quantity of gold he had buried at the side of the house. For example, the third defendant was told by the deceased that "if anything ever happens its out there ... I just want to let you know outside the side of the house, its buried there". The fourth defendant testified that the deceased took him out to where the gold was hidden and showed him where it was, telling him that in the event of his death it would be up to himself, his parents, brother and sister to "recount that gold ... go and collect it" because he was quite clear that he did not want the plaintiff to know where it was. I might say in passing that I totally reject the evidence of the second defendant that such gold as the deceased had was, in truth, his (the second defendant's) gold because the second defendant had funded prospecting trips of the deceased by paying for his fuel. Not only is the evidence incredible, but it was inconsistent with the testimony of the fourth defendant.

14 It follows from the conclusion I have reached in relation to gold kept by the deceased that there were some aspects of his life and/or his possessions which he was not prepared to share with the plaintiff. On the other hand, he did have a large sum of money in a tin which the plaintiff contends the deceased had always intended her to have. Certainly she knew about it and knew that it was kept on top of a wardrobe in the bedroom. After the death of the deceased that money was taken by the second defendant who contends that the plaintiff said to him "This is yours". I prefer the plaintiff's testimony that she always understood the money to be her entitlement but that the second defendant took it. Just what the quantity of it was remains unknown. The second defendant gave conflicting evidence as to whether he had or had not counted it but contended that it was approximately $3500 in total. The plaintiff is of the view that it was much more than that, although she is unable to say what it was. Although in the course of a taped conversation between the plaintiff and the second defendant (taped by the second defendant without the knowledge of the plaintiff) the second defendant did make comment in relation to the sum of money which, on one interpretation, might be taken to mean that it was $40,000 in total, a careful reading of the transcript of the discussion indicates that in its proper context, the second defendant's statement was that $40,000 money he had given to his lawyers had come from money with which he had intended to build a house, not from the tin of money.

15 This then was the backdrop of the relationship between the plaintiff and the deceased as at 21 April 1994 when the deceased died of what was termed "a second heart attack", although which the certified copy of certificate of death reveals to have been cardiogenic shock with dissecting aneurism. On 12 September 1991 the deceased had made a will, the relevant provision of which was in the following terms:

"I Give, devise and bequeath all my property whatsoever both real and person and in equal share to

My son Vaughn Charles Bunter and my daughter-in-law Jean Ann Bunter and my grandchildren Justin Dale Bunter, Owen Jerome Bunter and Fleur Lorelle Bunter all of 1 Buckingham Street Tarcoola Geraldton Western Australia.

I instruct my executor that my friend Myra Jean Paterson if she is still caring for me in my latter years shall if she wishes remain and occupy the property 239 Seventh Street Wonthella for a minimum of three years after my demise paying only nominal rent equal to twenty two per centum of the then existing age pension."

The executor of the will was the second defendant and the statement of assets and liabilities prepared by or on behalf of the second defendant reveals the net value of the estate of the deceased to be $173,121.72. The two primary assets were the house at 239 Seventh Street, Wonthella, valued at $80,000 and another house at 38 Tuart Street, Rangeway, valued at $61,500.

16 Before any application was made by the plaintiff under the Act, the second defendant distributed a portion of the estate by transferring the Seventh Avenue property to all defendants, the transfer of land being registered on 19 January 1996. The Rangeview property was sold on 6 January 1998 and the proceeds of sale ($65,000) deposited into the account of Golden Eagle Holdings Pty Ltd ("GEH"), a family company in which the directors and shareholders are the defendants but, which for all practical purposes, is a company controlled by the second defendant. The other assets were realised and the proceeds of sale thereof paid into the bank account of GEH. Some shares were transferred to GEH. The result is that only the furniture within the Wonthella property remains intact as part of the estate of the deceased. I accept the submissions of counsel for the plaintiff that payment of the proceeds of sale of the Rangeview property and other assets into the account of GEH does not constitute a distribution of the estate of the deceased.

17 The cash accumulated by the deceased and the gold which was dug up from the side of the house by the second defendant were not returned in the first statement of assets and liabilities, but the cash was returned in the second statement of assets and liabilities and offset against funeral expenses which had not previously appeared in the statement. As I have already found the second defendant's evidence to be wanting in relation to the ownership of the gold, it is apparent that the value of the gold should have been returned in the statement of assets. I have reservations about the value of $3500 attributed to the roll of money which was taken by the second defendant from the Wonthella residence after the deceased's death. On one account given by him it was never counted but on another it was. Unfortunately no independent person ever covered it. However, nothing in the end result turns on it.

18 After the death of the deceased the plaintiff was allowed to reside without payment of rent at Wonthella until three years elapsed from the date of death of the deceased. Although the deceased in his will had given the plaintiff the right to reside for a "minimum" of three years in that residence and at a rent equal to 22 per cent of the then aged pension, the second defendant chose on 1 July 1997 to advise the plaintiff that the house would be sold and in the interim she was to pay $100 per week by way of rent. It was not until October 1997 that the plaintiff consulted her present solicitors in Geraldton and later sought and obtained leave of the Court to commence proceedings under the Act, the originating summons being filed on 5 May 1998. By this time the plaintiff had protected her claimed interest in the Wonthella property by lodging a caveat in relation to it. Her claim under the originating summons is for an order that the house and contents at 239 Seventh Street, Wonthella vest in her and that there be such reasonable financial provision as the Court may think fit made for her out of the residuary estate of the deceased. As pointed out by counsel for the plaintiff, a problem arises with the first order sought. Ownership of the property has already been transferred to the defendants. It would not now be open to me to order that the property vest in the plaintiff. If I was of the view that the plaintiff should have been devised the Wonthella property, the only course open to me to effect that result would be pursuant to the provisions of s 65 of the Trustees Act 1962 to require the defendants to pay to the plaintiff a sum not exceeding the value of the Wonthella property (s 65(3)(a)).

19 Although the plaintiff does not say so in specific terms, it is evident from her affidavit sworn 30 April 1998 that she understood the intention of the deceased to be that she would be entitled to live in the Wonthella house for the balance of her life. According to that affidavit the deceased and she used to say "this little house will see us out" and she has denied (affidavit of 3 August 1998) a contention by the second defendant that she was ever aware from anything said by the deceased that she was to stay in the Wonthella property for only three years. Indeed, that contention by the second defendant (affidavit 3 August 1998) does not sit with the actual terms of the will in which the deceased gave the plaintiff the right to reside for a minimum of three years in the property.

20 The plaintiff's present position is that she is in receipt of a war widow's pension of $512 per fortnight. She has a sum of money invested with AGC. It amounted to $45,000 in April 1998 and had been more, but $10,000 of it had been garnisheed by the Department of Social Security by reason of overpayment of entitlements to the plaintiff whilst she lived with the deceased. There is no evidence as to what the sum of money is today, and although I have been urged by counsel for the plaintiff to assume that a portion of it has been used to fund this litigation, I am unable to reach any conclusion about that. I simply assume that there is a sum of money still invested for the plaintiff and that if her costs of these proceedings were to be paid out of the estate, she would be left in much the same position as she was in 1998.

21 An examination of the affidavit sworn by the defendants, together with their sworn evidence, reveals that each of them is in a relatively secure financial position. In an affidavit sworn 27 January 1999 the second plaintiff set out the financial position of himself and the third defendant. This was supplemented by an affidavit sworn 15 June 1999 annexed to which was a document described as a Special Purpose Financial Report of Golden Eagle Holdings Pty Ltd. In the second of these affidavits the second defendant deposed to the fact that as at 30 June 1998, GEH's net liabilities exceeded its net assets by approximately $60,000. Reference was made in the same affidavit to a business called "Fitness Express" which is owned by GEH and which business returns to the second plaintiff approximately $1400 per fortnight. The second defendant referred to various other assets of no substantial value and generally the import of the two affidavits dealing with the second defendant's financial position was to the effect described by counsel for the plaintiff "a gymnasium manager living in a tin shed and $60,000 in debt".

22 When cross-examined the second defendant was unable to properly explain the balance sheet of GEH, and in particular why an alleged loan to Fitness Express Pty Ltd should be shown as a liability. When pressed, the second plaintiff explained that the business of Fitness Express was purchased for $446,000 and was presently worth that sum, less debt of around $235,000. In net terms the second plaintiff put his worth at "about $450,000". Although all defendants are shareholders in GEH, I am satisfied that the second and third defendants have between them approximately $450,000 in net assets. I accept the submission of counsel for the plaintiff that this figure is probably conservative and I accept too that the second plaintiff did not lay before the court his true financial position and made little attempt to provide up-to-date values in relation to the various assets held. Evidence from the third defendant established that she currently works as a laboratory technician at Melville High School and earns approximately $25,000 per annum.

23 The fourth defendant is a chartered accountant who resides in Peppermint Grove Beach near Capel. He and his wife own two residential properties, each of which is mortgaged but in which there is a combined equity of approximately $45,000. He is in secure employment and earns $60,000 per annum. The fifth defendant resides in Broome where he owns a house subject to a mortgage. He has another investment property in Yokine and the combined equity in the two properties is in excess of $70,000. He is a technical officer with Broome Pearls and earns $70,000 per annum. The sixth defendant (now Fleur Lorelle Sharpe) was married only two weeks before trial. She and her husband live at Gelorup where he works as a laboratory technician earning approximately $50,000 per annum and she works in a part-time capacity (in Bunbury) as a bookkeeper, earning approximately $120 per week. She and her husband are buying a house in Gelorup in which there is an equity of approximately $40,000. One other aspect of the financial position of the fourth and fifth defendants should be noted. In or about 1987 - 1988 the deceased made available for the fourth and fifth defendants a sum of money which was placed in an account controlled by the second and third defendants in trust for the fourth and fifth defendants. This sum was apparently $20 - $30,000 at the inception, but appears to have increased to approximately $50,000 when a property was bought in Geraldton. In whose name it was registered is unclear, but in or about 1991 it was sold and the proceeds of sale thereof went towards the purchase of the property owned by GEH at Forrestdale in which the second and third defendants reside. The second defendant appears to have been responsible for the sale of the property and the appropriation of the proceeds thereof without there having been any specific accounting to the third and fourth defendants. It does not appear that the sixth defendant was ever provided with any trust fund by the deceased, but it is, in my view, relevant that during his lifetime the deceased advanced a substantial sum of money to the fourth and fifth defendants.

24 The first question to be determined is whether the plaintiff was a "defacto widow" within the meaning of s 7(1)(f) of the Act. In Ingamells v Western Australian Trustees Ltd & Randall, unreported; FCt SCt of WA; Library No 930117; 5 March 1993, the Full Court expressed definitive views on this subject. Malcolm CJ referred to the well-known decisions of Aylmore v Durack, unreported; SCt of WA; Library No 2169; 7 October 1977 and Re Harding (Dec); Thornton v Perpetual Trustees (WA) Ltd & Ors [1983] WAR 266 and said:

"It is apparent, from reading these decisions, that it is necessary to show that, at the time of death of the deceased, the two were living together as part of the same household as if they were married, but without the lawful celebration of a marriage and without necessarily having a mutual intent of a lifetime of cohabitation. We would not regard it as necessary to establish that the parties were thought by others to be man and wife. If that be the case, then no doubt it could be used as evidence to support the finding sought. It would not, however, be conclusive.

Regard must be had to the entire relationship. This is encompassed by the succinct remarks of Kirby P, in AA Tegel Pty Ltd v Madden (1985) 2 NSWLR 591 at 593, who described de facto relationships as:

'... the relationships between persons who, though not legally married live together sharing domestic circumstances and bound by affection and, usually, sexual relations.' "

25 Malcolm CJ also quoted with approval the following passage from the judgment of Fitzgerald J in Lynum v Director General of Social Security (1983) 52 ALR 128 at 131:

"Each element of a relationship draws its colour and significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meet the statutory test."

Malcolm CJ added:

"See also Pavey v Pavey [1976] FLC 90-051 where the Full Court of the Family Court stated at 75,211 - 75,212 that:

'The constituent elements of a marital relationship would include dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage.'

We would, with respect, add to those constituents the elements of mutual affection, caring and the sharing of material resources.

Finally, as was pointed out by the Full Court of the Family Court in L v L [1984] FLC 91-563 at 79,545 '... not all these [constituent] elements need be present before a consortium vitae can be recognised as such.' "

26 I have no doubt that in the present case the plaintiff was the defacto widow of the deceased. The relationship between the plaintiff and the deceased met the tests referred to by Malcolm CJ, and I find, in particular, that at the time of death of the deceased the two lived together as part of the same household as if they were married but without the lawful celebration of marriage. They nevertheless appear to have had a mutual intent of a lifetime of cohabitation. They were clearly thought by others to be man and wife, as evidenced from the testimony of Mr Beard. They shared domestic circumstances, they were bound by affection and by sexual relations and in their private relationship there was a clear recognition of the existence of a deep and loving relationship.

27 It follows from the conclusions I have reached that I have accepted that for a period of nearly 10 years the plaintiff and the deceased lived together in the same household where they, for the majority of that period, shared a double bed in the main bedroom and engaged, at least for a period, in a sexual relationship. I conclude from the cards which the deceased gave to the plaintiff that there was a deep and loving relationship between them. This may have been expressed only privately by the deceased, but nevertheless it was, in my view, outwardly obvious to others that they resided together as if they were a married couple. I have already mentioned the evidence of Beard, but I find also that the defendants, or at least the second, third and sixth defendant, by their correspondence with the plaintiff and the deceased, recognised that they were a "defacto couple" in the colloquial and popular sense. It is true that there appears to have been a complete separation in the financial resources of the plaintiff and the deceased, but each was in receipt of a pension, and the arrangement by which the plaintiff contributed to one-half the cost of all bills seems to me to have been normal enough, given that situation. It is true that there were no joint bank accounts and no proper pooling of resources, but there was, nevertheless, a general sharing of domestic expenses. I have already discussed the question of rent and I conclude that whatever the position may have been before 1992, at the date of death, the plaintiff was paying no rent to the deceased. If she did make a contribution of $25 a week before 1992 it does not, in my view, detract from the conclusion I have reached. It is also true that the property at Wonthella was never transferred into the joint names of the plaintiff and the deceased. It remained at all relevant times registered in the name of the deceased alone. Nor is there any indication that at any time the plaintiff contemplated contributing to the purchase of a one-half share of the property. However, that does not seem to me to be determinative at all. The deceased had a house of his own when he first met the plaintiff and it was he who encouraged the plaintiff to move in with him. After first living at one house they moved to the Wonthella house and that, in my view, was their home, in whoever's name it may have been registered. In relation to the performance of household duties I accept the evidence of the plaintiff that she generally washed, ironed and cooked. Although counsel for the defendants contended that there was some inconsistency in the plaintiff's evidence in this regard, it seems to me to be only that at the Cassia Street house the deceased did the washing because of the cumbersome nature of the washing machine. After it had been done the plaintiff hung it. Later, at Seventh Street, Wonthella when the plaintiff had bought a new automatic washing machine, she was responsible for doing all of the washing. Whilst the plaintiff may, in her first affidavit, have deposed to the fact that she at all times did "all the deceased's washing, ironing and housecleaning", nothing in my view turns on any minor inconsistency that there may be in this regard.

28 Having found the plaintiff to be a defacto widow within the meaning of the relevant provision, the next question is whether she was "wholly or partly maintained by the deceased". I have already indicated that, in my view, the plaintiff was clearly partly maintained by the deceased at the date of his death. This is because she was certainly paying no rent as at that date. Whether she paid rent at an earlier time I am unable to finally resolve. However, if she did contribute $25 per week by way of rent prior to 1992, that was certainly not the position two years later. As was pointed out by counsel for the plaintiff, maintenance includes things other than the provision of money. In Carmichael v Schram, unreported; SCt of WA; Library No 950717; 21 December 1995, Owen J concluded that partial maintenance of the plaintiff by the deceased was evidenced by (inter alia) his driving her to and from town as the need arose. That certainly was the case between the plaintiff and the deceased here. The deceased had an old Cortina motor vehicle in which he drove the plaintiff to and from the shops as and when required. He also drove her elsewhere on occasions.

29 The next question is whether the plaintiff was ordinarily a member of the household of the deceased and in relation to that there is no issue. The final question is whether there was a special moral responsibility of the deceased to make provision for the plaintiff. The phrase "special moral responsibility" has been the subject of considerable authority. In Re Harding (supra), Brinsden J (at 267) pointed out that in Aylmore v Durack (supra), Wickham J had said that the distinction being made by the phrase was no more than one between the "general moral responsibility which the community might consider falls upon the shoulders of any man who has been living with any woman as contrasted with a moral responsibility which arises out of the circumstances of the particular two people and special to those circumstances". As his Honour pointed out (at 268) "a housekeeper who otherwise was performing no services for the deceased but that of housekeeping would probably not qualify, whereas if she and the deceased were sharing his bed it is possible some special moral responsibility might be thought to exist".

30 In McKenzie v Falconer-Brown (1990) 3 WAR 438, Murray J (at 445) pointed out that the requirement that there be some special moral responsibility to make provision is clearly a requirement additional to that which is to be drawn from the status of the plaintiff as a member of the deceased's household. As he said "something extra is required". His Honour found (at 447) that in the context of the case under consideration there was no special moral responsibility because the plaintiff had not made "any considerable sacrifice for (the deceased) of a financial or other character. They were simply two people who expressed affection for each other and had entered into a mutually supportive and fulfilling relationship". That, in my view, cannot be said to be the case here. The plaintiff had, in my view, made considerable sacrifice for the deceased, not of a financial nature, but by reason of the 10 years that she had spent living with him, caring for him and fulfilling the role which would normally be played by a lawful wife. As was said by Wickham J in Aylmore v Durack (supra) (at 5), she had "made the necessary sacrifices involved in (being a defacto wife) and peculiar to that particular situation, and he had assumed the obligations to her inherent and peculiar to that". As I said during argument in this case, there seems to be underlying the cases a principle that a woman who has lived a long period of time as the defacto wife of another can generally be said to have made sacrifices "involved in ... and peculiar to that particular situation" in the sense that she has foregone the security of marriage, but has in every other respect played the role of a wife. The fact that the plaintiff in this case gave the deceased particular care during the two years between what was termed his first heart attack and his second adds to the conclusion I have reached that she did indeed make particular sacrifices for the deceased.

31 Although it was argued by counsel for the defendants that the financial independence of the plaintiff and the deceased, their lack of sharing of assets and resources and their lack of public or private recognition of a marriage-like state denied the existence of a requisite special moral responsibility, I am unable to accept that contention. In the first place there was, in my view, public and private recognition of a marriage-like state, and finances and sharing of assets/resources apart, the plaintiff in every other respect made the necessary sacrifices involved in and peculiar to the situation of being a defacto wife. At the same time the deceased had assumed, in my view, the obligations to her inherent and peculiar to it. I therefore find that the plaintiff has the appropriate status under s 7(1)(f) of the Act.

32 The next question is whether the plaintiff received adequate provision from the estate of the deceased for her proper maintenance and support. I respectfully adopt the observations of Steytler J in Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995 (at 9 - 12) where his Honour makes reference to the difference between the words "proper" and "adequate", pointing out that "proper" is something different from "adequate". It is unnecessary for me to set out in detail the passages to which his Honour there referred. They are well accepted and in the end raise questions to be determined as a matter of fact, although with the exercise of value judgments (see Steytler J at p 12 in particular).

33 In relation to the adequacy of the provision made by the deceased for the plaintiff in his will, counsel for the plaintiff argues that plainly a three year right to reside in the Wonthella home whilst paying rent was inadequate. Counsel for the defendants was driven to concede that if there was any inadequacy in the provision contained within the will it was in relation to the period of time set. Counsel for the defendants also conceded that whether or not rent should have been paid was a live issue. He pointed out, however, that the plaintiff, whilst not paying rent prior to the death of the deceased, had saved a reasonably substantial sum of money and one could assume that the deceased knew that she had that money.

34 I have no difficulty concluding that the provision the deceased made for the plaintiff was plainly inadequate. She had lived with him for a period of 10 years and I accept her evidence that she and the deceased had often spoken of the house at Wonthella "seeing them out". It was, in my view, only reasonable that the plaintiff should have been able to see out her life in the very house in which she and the deceased had lived for a decade. Even more so when regard was had to the fact that there was another property in Geraldton owned by the deceased which was left to the defendants. The fact that the plaintiff had a lump sum of money, which was some $45,000 as at 1998, does not, in my view, detract from her entitlement to continued residence rent free in what had been the home of herself and the deceased.

35 I am therefore of the view that the deceased did not make adequate provision from his estate for the proper maintenance of the plaintiff. I accept the argument of counsel for the defendant that the question is to be determined by reference to circumstances as they existed at the time of death, at which time the plaintiff did have a substantial lump sum investment and was in receipt of a pension. As I intend to make provision for the plaintiff under the Act, the discretion is to be exercised by reference to circumstances existing at this moment: White v Barron [1980] HCA 14; (1979-1980) 144 CLR 431 at 441; Bondelmonte v Blanckensee [1989] WAR 305 at 307. I accept too that the size of the estate of the deceased is relevant in determining what is the proper maintenance and support of the plaintiff: Bosch v Perpetual Trustees Co Ltd [1938] AC 463; Bondelmonte v Blanckensee (supra). It was argued by counsel for the defendants that it would be inappropriate to make a capital provision for the plaintiff when regard is had to her age. It was put that the benefit of another kind would safeguard her personally without leaving her in a position where she could benefit her relatives from the proceeds of the legacy (White v Barron (supra) per Mason J at 444). It was also put (and I accept) that the proper level of maintenance and support requires the consideration of the relationship between the deceased and other persons who have legitimate claims upon his bounty (Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209 - 210) and in this case it was contended that those to whom the deceased had chosen to distribute his estate (the defendants) all have legitimate claims upon his bounty. Although it was put by counsel for the defendants that none of them is "well off" and in particular the son of the deceased is living in relatively modest accommodation and circumstances", I do not accept this submission for the reasons that I have previously set out. In my view, all defendants are reasonably well financially placed. I do, of course, accept that there is no requirement that a "need" in relation to the second plaintiff should exist. The relationship between father and son does not require such special need (Grainger v The Public Trustee (supra) per Steytler J at 104) and the relationship which existed between father and son remains a relevant consideration. In this case I do find that there was a reasonably close relationship between the deceased and his son. It is true that they may not have seen each other regularly, but on the other hand, there was clearly confidence between the deceased and the second defendant. The evidence in relation to the deceased making his son aware of the location of gold and deliberately excluding the plaintiff from that knowledge is telling in that regard. However, the deceased did leave the second of his houses to the defendants and to that extent and to the extent to which other assets were left to them they were, in my view, well provided for.

36 In the end the essential question is whether it is necessary for the proper maintenance of the plaintiff that she should have the house at Wonthella and/or whether she should have a capital sum in addition. It was strongly argued by the plaintiff's counsel that nothing less than a vesting of the Wonthella property in the plaintiff would be sufficient (although recognising that by reason of what has occurred, that cannot practically occur but would need to be done by the circuitous route of utilising s 65 of the Trustees Act 1962). Counsel for the defendants submitted on the other hand that something less than such provision was called for, conceding that a better provision in relation to occupancy of the Wonthella house would be an answer to the plaintiff's claim. In this regard counsel gave an assurance that the defendants would undertake, if necessary, to enter into an appropriate deed to make provision for the plaintiff for whatever period of occupancy and on whatever terms and conditions I set.

37 In the end I have concluded that the justice of the case would be met by the plaintiff being given the right of exclusive occupancy of the Wonthella property for her life, she being required to pay only the ordinary outgoings in relation to the house, namely, electricity, gas, water usage and the like, with the obligation for all statutory charges such as rates, taxes and (if applicable) land tax, remaining as they necessarily would with the defendants by reason of the fact that the property is registered in their name. I do not consider that the plaintiff should be required to pay any rent. She should, however, be responsible for the ordinary maintenance of the house, its gardens and surrounds. In addition, the plaintiff should have the use for life (or until she leaves the property) the furnishings and fittings within the house.

38 The plaintiff's life expectation is just under 11 years and a time may arise when she will be unable to maintain herself in the Wonthella house. She may need to transfer to another location. This was touched upon in the recorded discussion between the second defendant and the plaintiff, the transcript of which reveals that the plaintiff conceded that she would be eligible to move at some time in her life to a home or residence provided for persons in receipt of a war widow's pension. There was, however, no evidence as to what, if anything, might be required by way of capital outlay in so doing. In my view this position is best accommodated by there being a provision that if at any time during her life the plaintiff ceases to reside in the Wonthella property, she should be provided by the defendants with a lump sum equal to one-third of the market value of the house. That today would be a sum just over $25,000, and when added to whatever capital the plaintiff has would, in my view, be sufficient to accommodate her future needs in the event that she was unable to or did not desire to continue living in the Wonthella house. It would preserve the Wonthella property for the defendants, requiring them to advance only a portion of the market value of it to the plaintiff in the event that she had such a requirement. Having regard to the difficulties inherent in the fact that the Wonthella property has already been transferred to the defendants, it will be necessary to hear further submissions as to how these orders can be effected by deed or otherwise.

Authorities Cited5

Referred to (5)