Box & Box, Re [1990] QSC 34

~o1 I IN THE SUPREME COURT OF QUEENSLAND O.S No. 517 of 1988 Before Mr. Justice Shepherdson IN THE MATTER of Part IV of the "Succession Act 1981" IN THE MATTER of the ESTATE of JOSEPH STANLEY BOX, Deceased, late of 23 Mars Street, Coorparoo, Brisbane in the State of Queensland, Retired Master Builder - and - IN THE MATTER of an application by ELISABETH BERNHARDINE BOX for provision under the said Act JUDGMENT - SHEPHERDSON J. Delivered the GIG-l-/1H day of r?"Jlil<Cl-1 1990 CATCHWORDS Succession - Testator's Family Maintenance - Family Provision - Widow 72 years at hearing - Indexed annuity under will and life interest in house - Large estate - Whether adequate provision made by Testator. Counsel: Mr. Wilson for the Applicant Mr. McGill for the Executors Solicitors: Messrs. V.J. Hefferan & Co. for the Applicant Messrs. Morris Fletcher & Cross for Executors Hearing Date: 22nd February, 1990. -- 1 of 31 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 517 of 1988 IN THE MATTER of Part IV of the "Succession Act 1981 ". IN THE MATTER of the ESTATE of JOSEPH STANLEY BOX, Deceased, late of 23 Mars Street, Coorparoo, Brisbane in the State of Queensland, Retired Master Builder. - and - IN THE MATTER of an application by ELISABETHBERNHARDINE BOX for provision under the said Act. JUDGMENT - SHEPHERDSON J. Delivered the £[Gif1J/ day of /11171f CJ./ 1990 . Elisabeth Bernhardine Box has applied under Part IV of the Succession Act 1981 (as amended) for an order that adequate provision be made for her out of the estate of the abovenamed Joseph Stanley Box (hereinafter called "testator"), late of 23 Mars Street, Coorparoo, Brisbane, retired Master Builder deceased. The applicant is the widow of the testator who died on 7th September, 1987. She was a spinster when she married the testator, who was then a widower, on 7th July, 1967 at Brisbane. The applicant was born in Germany on 30th August, 1917 and the testator was born in Brisbane on 16th March, 1912. There were no children of the marriage of the applicant and the testator. The testator had been married once before he married the applicant. This was in 1936 to a lady whose christian names were Doris Eileen - I am not told her maiden name. By that marriage he had three children all of whom survived him. They are: Carole Ann O'Connor born 25th April, 1937. Geoffrey Joseph Stanley Box born 4th August, 1941. Joseph Hugh Box born 15th February, 1948. -- 2 of 31 -- 2 Mrs. Doris Box died on 4th May, 1966. The applicant had one child.prior to her marriage with the testator. The christian names of that child who was born 29th September, 1944 are Christa Elizabeth. I do not know her surname. Christa lived with the testator and the applicant for some two years and ten months after their marriage and before her marriage on' 1 st May, 1970. There is no suggestion that Christa· is entitled to be treated as an applicant in the present application. Affidavits by the applicant and the three children by the testator's former marriage were part of the material read before me. Each of the three children and the applicant were cross-examined before me as also was Kenneth Arthur Copeland who is one of the two executors and trustees of the testator's will. The other . executor is Geoffrey Joseph Stanl.ey Box, one of the testator's children. Probate of the will was granted by this Court on 19th November, 1987 and the grant was sealed on 23rd November, 1987. Mr. McGill, who appeared for the executors, conceded that all the three children were comfortably off, that none was in need, that none had an especial moral claim against the estate of the testator and that there was no claimant competing with the applicant widow. There was no animosity between the applicant and the three children of the testator. The applicant, who is now 72 years old, detailed in her affidavits her life story before meeting the testator. Suffice to say that she lived with and brought up her child, who was born during World War II, that she received a small pension, that she trained herself and had two jobs, one as an office assistant or secretary and the other in an insurance office in West Germany from which she migrated to New Zealand in -- 3 of 31 -- 3 February, 1958; that in Auckland the applicant cared for her daughter and obtained work and that by 1962 she had saved enough money to put a deposit on a house which she bought with the aid of a mortgage. The applicant divided it into two flats, living in one and renting another. The mortgage was paid off and in June, 1966 the applicant came to Australia and was followed by her daughter who came on a working holiday. Through an employment agency the applicant obtained work as a live-in housekeeper for the testator who then had been recently widowed. The applicant lived in and worked at the testator's residence at 23 Mars Street, Coorparoo until early December, 1966 when she left Brisbane and worked in Surfers Paradise. The testator courted the applicant who returned to New Zealand. She ultimately returned to Australia where, as I have said, she married the testator. Their marriage was I am satisfied a happy one. The testator's youngest child, Joseph, was 19 years old at the time of the marriage and he remained in the testator's home until he married on 8th August, 1970. The applicant's daughter Christa also lived with her mother and the testator until she herself married on 1st May, 1970. At the time of her marriage to the testator the applicant's assets consisted of a house in Auckland, some little money in the bank, her personal belongings, some jewellery and a small investment in the Auckland Building Society. At that time the applicant owed an unknown amount of money on the Auckland property. In July, 1969 the applicant sold the Auckland house and after paying out the mortgage she received A$2,831 .65 on or about 14th January, 1970. When she married the testator he had established and was running a successful buildi:r:i-g and construction company and he continued to do so. The applicant looked after the matrimonial home and attended to the -- 4 of 31 -- 4 usual household chores. She has sworn that she never had any permanent help in the home by way of household assistance although there was a person to mow the lawn and sometimes to tend the garden. She said she attended to all washing, ironing and cooking needs of the testator, herself and Joseph Box - the latter until he married. The testator was the Federal President of the Master Builders' Association and as such was often away from the home, frequently in Canberra. The applicant accompanied him whenever there was to be formal function. She travelled all around Australia with the testator visiting all the capital cities. She swears to have been to Perth 12 times with the testator who she said was also involved with a building institute and was chairman of the Builders' Registration Board for ten years. The applicant has referred to a number of overseas trips whj.,ch she enjoyed with the testator. In 1968 they went to a conference in ManiTa and were away for some three months. She thinks that it was in 1983 when she and the testator sailed from Brisbane to Southhampton on the QEII; in 1985 she and the testator travelled to Greece and sailed in the Mediterranean for two weeks - this trip was a holiday following which the couple flew to Ireland for a seven day tour and then returned to Australia after a one week stay in Hong Kong. During March and April, 1987 the applicant and the testator sailed to Tokyo where the testator became quite ill; however, after some time in hospital in Tokyo the testator was able to return to Brisbane with the applicant. Apart from the above trips so far mentioned the applicant has said that she and her husband made a number of other trips to various parts of the world, mainly attending various building and construction conventions. She also refers to trips within Australia. In her affidavits she has provided -- 5 of 31 -- 5 some costs of some trips and generally stated costs of various i terns during her marriage to the testator. She has described the testator's health including conditions of high blood pressure and diabetes which were controlled by diet and drugs. The applicant has sworn that throughout her marriage the testator paid for all of their expenses and that she lived quite well; that he gave her various presents including various pieces of jewellery; that prior to his death all her expenses were met by the testator including bank card expenses, clothing and expenses for personal belongings as well as living expenses at home. She says the testator retained confidentiality in his business affairs, that she did not know what his assets comprised other than to sar that she was under the clear impression "that we were reasonably'well off". She says that "while we lived in quite a comfortable fashion" she did not believe their life style was extravagant. In a later affidavit the applicant has said that she had no real knowledge of what the testator's nett wealth was; that nevertheless the two of them enjoyed a very interesting and rewarding life style which resulted in her being supported very comfortably and being able to enjoy the pleasures of life such as overseas trips, frequent visits to the theatre and other places of entertainment and generally not really having to worry at all about day to day financial pressures because there did not seem to be any financial pressure at all upon their life style. Prior to the testator's death the applicant had no income tax liability and no separate income. She has further sworn that she and her husband frequently attended the theatre, cinemas and occasionally went to the races together; that once a month she attended the Premier's wife's function for an official charity -- 6 of 31 -- 6 which cost between $15.00 and $30.00 each time, that she and the testator would go out to dinner about once a month, her cost being paid by the testator (being about $50.00). The applicant has estimated that she went to the races with the testator about 15 times a year and taking into account all matters including entry fees, meal and betting money her cost to the testator on these occasions was some $800. 00 per annum. I have no hesitation in accepting the applicant as a witness of truth in the above descriptions and generally in what she has said in her affidavits and before me as to the life style which she and the testator enjoyed and events affecting her life style since his death. I turn now to evidence before me as to the circumstances existing at the date of the testator's death. These circumstances include the assets and liabilities of the testator and of the applicant as at that date. I do so because under s.41 of the Succession Act I have to decide whether in terms of the testator's will adequate provision is not made from the testator's estate for the proper maintenance and support of the applicant. As Mason J. (as he then was) said in White v. Barron (1980) .144 C.L.R. 431 at p. 441 (when speaking of the New South Wales equivalent of s. 41):- "The-question whether the testator left the appellant widow 'without adequate provision' for her 'propermaintenance' was to be determined by the primary Judge by reference to circumstances as they existed at the date of the testator's death. Once this question was answered in the affirmative, it was for the Court to exercise its discretion to order adequate provision for proper maintenance for the appellant by reference to circumstances as they existed at the date of the order. See generally Coates v. National TrusteesExecutors and Agency Co. Ltd. (1956) 95 C.L.R. 494. There Dixon C. J. observed that in determining the initial question of jurisdiction a Court must look to what is 'necessary or appropriate prospectively from that time', that is, the date of death, including events which are contingent as well as those which are certain or likely. Advantage may be taken of hindsight so long as the subsequent occurrences fall -- 7 of 31 -- 7 within 'the range of reasonable foresight' ((1956) 95 C.L.R. at p. 508)." The assets and liabilities of the testator at the date of his death were as follows:- House and property at 23 Mars Street, Coorparoo - $160,000.00 Home unit at Gold Coast Cheque accounts with the ANZ Bank Accounts with Westpac including IBD Jaguar motor vehicle Shares in MIM Holdings Shares in Hartogen Energy Ltd. Interest free loan - G. & J. Box Properties Pty. Ltd. Deposit with Coorparoo Bowls Club Debenture stock with Esanda Limited Debenture stock with AGC Limited B.C.C. inscribed stock Less liabilities including estimated tax Total nett assets $ 60,000.00 $ 11,887.73 $ 5,580.18 $ 13,500.00 $ 1,596.42 $ 1,156.30 $335,000.00 $ 500.00 $296,300.00 $ 8,000.00 $ 400.00 $893,920.63 $ 8,686.82 $885,233.81 The applicant's assets at the date of her husband's death were not given in detail but according to her affidavit she owned clothing and personal belongings and $100.00 in cash which the testator had given her before she and he had left for a holiday to Alice Springs, Ayers Rock and Cairns shortly before his death. The testator died three days after their return from Cairns. The applicant also owned a 1970 model Torana motor car the value of which, at the date of the testator's death, is not stated. There is evidence, which I accept, that this car had reached a state where it was not economical for the applicant to -- 8 of 31 -- 8 continue to pay repair costs, that it did not pass a test for a road worthiness certificate and that within a comparatively short time after the testator's death she sold it to her son-in-law for $1,000.00 in "as is" condition after a garage proprietor had offered $350.00 for it. I turn now to the testator's will and the provision for the applicant made therein. The will was dated 5th December, 1986. (a) By cl. 3 the testator gave all his household furniture and furnishings and all other items of household use and ornament contained in his principal residence at the date of his death to the applicant absolutely free of all duties. The principal residence was 23 Mars Street, Coorparoo. The value of this furniture was not stated but it does not seem to have been of any great value. The applicant's affidavit filed on 17 November, 1989 supports this view. (b) As to the rest and residue of the estate, after trusts for sale and conversion and payment of duties and debts, the executors were to hold the balance upon trust:- (i) To allow the applicant to reside free of charge during her life time in his principal residence at the date of his death with the proviso that the applicant should have the right to request the trustees from time to time to sell any such residence and to purchase in lieu thereof a home unit or other place of residence which his trustees should "consider to be suitable for occupancy by my said wife PROVIDED THAT the same is in keeping with the standards to which my said wife is accustomed" and the applicant should be -- 9 of 31 -- 9 entitled to occupy free of charge such unit or other place of residence during her life time. (ii) To pay all rates, insurance, land taxes, electricity, gas, power charges, maintenance and repairs of every description to any house or other dwelling place which the applicant is entitled to occupy in accordance with the preceding provisions of the will. (iii) To pay to the applicant during her life time so much of the income of the balance of the estate as should not exceed in any month what was called and defined as "the monthly payment" provided that if the income from the balance should be less than the monthly payment in any month then the trustees should resort to capital to make up to the applicant the amount by which the income from the estate is less than "the monthly payment" for that month. The will went on to state in cl. S(c) "PROVIDED FURTHER ALWAYS that if my trustees shall in their discretion consider that the amount payable to my said wife in any month in accordance with the preceding provisions of this paragraph is less than the amount which in their opinion she requires in order to maintain her living standards to which she is accustomed, then my trustees may have resort to the capital of the balance of my estate in order to pay such further amounts to my said wife as they shall see fit". The monthly payment was defined in the will and it is quite clear from the will that it was and is to be reviewed annually in accordance with movements in the Consumer Price Index (All -- 10 of 31 -- 10 Groups) Brisbane as published by the Commonwealth Statistician commencing with that index for the quarter ended 30th June, 1986. The will further provided that if at any time the applicant should remarry then the monthly payment amount t_o be paid to her should be reduced by one half. The will also contained machinery to provide for calculation of the monthly payment in the event that the Consumer Prices Index (All Groups) Brisbane ceases to be published by the Commonwealth Statistician. Apart from the above provisions for the applicant widow, the testator's will, in summary, made the following further provisions for other persons:- ~ 1. By cl. 4 he gave to his children Geoffrey Box and Joseph Box in equal shares the debt owing at the date of his death by G. & J. Box Properties Pty. Ltd. - this is the above asset of $335,000.00. 2. The balance of the income from the residuary estate not from time to time required to pay the "monthly payment" to the widow was to be paid, during the life time of the applicant, to his three children in equal shares. 3. On the death of the applicant the trustees are to hold the balance of the estate:- (i) To pay to Carole Ann O'Connor an amount equal to one third of the debt given by cl. 4 i.e. one third of the $335,000.00. (ii) To pay the remainder to each of the testator's three children in equal shares. I ignore provisions in the will for substitution of grandchildren for deceased children. -- 11 of 31 -- 1 1 I must now say something about the debt described in cl. 4 of the will as "the Trust Debt" and which is represented by the above $335,000.00 in the testator's assets. The circumstances in which it came into existence are, I think, relevant. I am satisfied, after having heard the applicant, Mr. Copeland and each of the three children, that the testator was a person who kept his personal affairs very much to himself. He did not discuss his business and business dealings with his wife or his children but when he came to retire from his building business he must have discussed some financial dealings to some extent with his sons, especially Geoffrey Box. Mr. Copeland was, I find, the testator's accountant for many years before the testator's death and to some extent privy to his financial affairs. Mr. Copeland was a partner in Peat, Marwick and Hungerford until 30th June, 1988. He has since retired. In 1977 the testator told Mr. Copeland he wished to retire. Mr. Copeland knew, from discussions he had had with the testator, that the testator had been contemplating this step for some years. The testator formally retired on 30th March, 1978. The testator's sons Geoffrey and Joseph decided they would like to carry on in the construction industry. They sought advice from Peat Marwick Mitchell & Co., as that firm then was, and as a result created certain unit trusts and commenced two businesses on about 7th December, 1977. The testator had no interest in these two businesses. He had conducted his construction business through Box & Co. which was a group of four companies operating in partnership: A company known as J.S. Box & Co. Pty. Ltd. owned real estate. That company sold its real estate to one of the two new unit trusts formed by Geoffrey and Joseph. The purchase price was $534,520.00. -- 12 of 31 -- 12 During the financial year ended 30th June, 1978 construction contracts carried out by Box & Co. were completed and all business virtually ceased. Upori his retirement on 30th June, 1978 the testator was paid out his superannuation entitlements as well as an ex-gratia payment of $55,543.64 as compensation for "a shortfall in the superannuation fund. His total lump sum payment was $75,072.00 which included superannuation, long service leave and holiday pay entitlements. The affidavit of the executors is not clear but I infer that the testator received the total of these two last mentioned sums. The business previously carried on by the testator through J.S. Box & Co. Pty. Ltd. was sold on 3rd November, 1978 for $1,054,153.00. According to Mr. Copeland, J.S. Box & Co. Pty. Ltd. was a holding company, another company Box & Sons Pty. Ltd. was~ wholly owned subsidiary of J.S. Box & Co. Pty. Ltd. and four other companies namely Anthony Pty. Ltd., Joseph Pty. Ltd., Carol Pty. Ltd. and J. Geoffrey Pty. Ltd. were wholly owned subsidiaries of Box & Sons Pty. Ltd. These last four mentioned companies operated in partnership as Box & Co., a firm I have already mentioned. Shareholdings in the holding company showed that the testator from the proceeds of sale of his shares received $604,153.00 and that each of the three children from the sale of their shares received $150,000.00. It appears that from the moneys he received the testator lent $335,000.00 on interest free terms to G. & J. Box Properties Pty. Ltd. This is the debt referred to in cl. 4 of the will. At the date of the testator's death, the applicant found herself then with some personal effects, a small amount of cash, a 1970 Torana car, a life interest in the matrimonial home (with the right to request a change of residence) and an indexed -- 13 of 31 -- 13 monthly income. In the period from the date of death i.e. 7th September, 1987 to 30th June, 1988 the applicant received the following payments from the testator's estate:- Advance 7/9/87 to 31/12/87 6 months at $1,615.00 $2,500.00 $3,495.00 $9,690.00 $15,685.00 I understand the above advance of $2,500.00 is a total of moneys which Geoffrey Box gave the applicant shortly after the testator's death. The applicant has said that after her husband's death she opened a high performance savings account and a cheque account at the ANZ bank, Coorparoo and that she did I so with the help of Geoffrey Box. She describes how Geoffrey Box went with her to the bank and assisted her in opening the accounts when he deposited the sum of $2,000.00 into her account and in addition gave her $500.00 cash which she kept personally and did not bank. The monthly payments continued at the rate of $1,615.00 until after 30th September, 1988 when they increased to $1,731.00. $1,865.00. After 30th September, 1989 they increased to Apart from those monthly payments, material shows that for the period 7th September, 1987 to 31st December, 1989 payments by the executors have included telephone and electricity, insurance on the house and contents at 23 Mars Street, rates, repairs and maintenance, workers' compensation, RACQ and cab charge as well as payments for Lindsay Gardens Management fee. I shall explain this last mentioned matter later. Mr. Wilson, counsel for the applicant, has submitted that I should find that in terms of the testator's will, adequate -- 14 of 31 -- 14 provision has not been made from his estate for the proper maintenance and support of the applicant. He argued that there were two basic points:- 1. The testator failed to give proper attention to one critical matter i.e. the need of the applicant for a fund to provide for necessary capital expenditure, for expenses consistent with maintaining her life style with the testator and as a shield against unforeseen and unexpected expense. 2. That the testator erred in making the annuity subject to continued widowhood. Mr. McGill, counsel for the executors, has submitted that the indexed monthly income was adequate for the needs of the applicant and that she has failed to satisfy me that she has been left without adequate provision for her maintenance. To support his submission that the provisions in the will including the indexed monthly maintenance were adequate, Mr. McGill focused on figures provided by the applicant as to her needs as at 20th October, 1989. These total $279.00 per week and ignored income tax. They also did not take into. account car running expenses. These figures are no real help in deciding the jurisdiction question. The monthly payments under the will have increased since the testator's death and as at 20th October, 1989 were $1 , 865. 00 or about $430. 00 per week. There is evidence that the applicant saved from her earlier income. The savings were said to have been some $7,000.00 which moneys were spent towards the cost of an overseas trip to Germany to visit relatives whom she had not seen for ten years. The applicant travelled with her daughter who assisted in an unspecified amount with the cost of the trip. The applicant and the testator had visited these relatives some ten years earlier. -- 15 of 31 -- 15 There is however no evidence to show what the applicant's weekly expenses were before 20th October, 1989 and how those expenses were then split up. While it may be true that in some instances the amounts allocated to various items as at 20th October, 1989 were high or incorrectly claimed - Mr. McGill concentrated on a number of items namely clothing - $55.00 per week, other medical expenses including chemists - $15. 00 a week and incidental expenses - $25.00 all of .which he said were too high. I shall return to those figures later. I do not think it helpful to adopt what may be thought a parsimonious approach when dealing with an estate the size of the present one where there was really only one claimant to receive the testator's bounty immediately after his death. The figures as at 20th October, 1989 are too far removed from 7th September, 1987 to be of any help on this initial question of jurisdiction. What strikes me about the applicant's financial position immediately before the testator died and immediately afterwards is that she had no fund or entitlement to a fund nor did she have any asset which could be converted into a fund to meet any reasonably substantial contingency such as unexpected illness requiring a stay in hospital. The applicant was then 70 years old although apparently in quite good health. She is now insured with Medical Benefits Fund on the highest table. Whether she was so insured at the date of the testator's death is not stated. I should here say that it is only after I decide that I have jurisdiction to interfere with the provisions of the testator's will that I can look to circumstances as they exist at the date of any order I may make. In determining the initi~l question of jurisdiction I must look to what is necessary or appropriate prospectively from the date of death and I can -- 16 of 31 -- 16 include events which are contingent as well as those which are certain or likely. I also take advantage of hindsight so long as the subsequent occurrences fall within "the range of reasonable foresight" (see White v. Barron (supra) at p. 441. It is true that on 7th September, 1987 the applicant widow was aged 70 years. I find that during their marriage of 20 years the life style of the applicant and the testator was comfortable and that he dealt generously with her, paying, as she said, all her expenses including bank card expenses, clothing and expenses for personal belongings and he also gave her various pieces of jewellery. The testator's support of the applicant was such that she had no need of a bank account. I find that the testator paid for all expenses associated with the applicant who I find was entirely dependent upon him at the date of his death. At this stage I think I should mention one incident during the marriage an incident of which of Mr. McGill sought to make some capital as showing that the level of the annuity was more than sufficient to cover the applicant's needs when combined with the life interest in the house. That incident concerned an occasion when in about August, 1983 at an auction the applicant had signed a contract to buy a unit in "The Gardens" in Alice Street, Brisbane. The testator did not attend the auction. Shares were sold but the applicant was unable to raise the balance purchase moneys needed and in the result the deposit paid was forfeited. The applicant has dealt with this incident in para. 3 of her affidavit sworn on 10th May, 1989. I do not propose to repeat it here. I do find that she signed this contract without having any prior agreement with the testator for him to finance the purchase. I also find that the fact that the testator did not assist the applicant to -- 17 of 31 -- 17 complete the purchase does not detract from my view as to the happiness of the marriage. Mr. McGill put his case as high as submitting that the testator had refused to assist the applicant. I am not prepared to find that this incident · in which the testator may have appeared to deal with the applicant in a harsh financial fashion can be construed to show that the provision made for · the applicant in the testator's will was adequate. The applicant was the person with the primary claim upon the testator's bounty, his children having much less claim to benefit immediately upon the testator's death. The testator had a large estate and had already lent $335,000.00 to G. & J. Box Properties Pty. Ltd. on interest free terms. This asset formed part of his estate. In cl. 4 of his will the testator in effect forgave this .debt. Each of his three children had received $150,000.00 on the sale of their shares in J.S. Box & Co. Pty. Ltd., a company controlled by the testator. These children's shares were issued by the testator during his first marriage and were shares of which each child was unaware until each child received his and her proceeds in 1978. The receipt of the $150,000.00 by each child was, I am satisfied, a windfall unexpected by any of them. Each of the three children was, at the date of the testator's death, and still is, comfortably off and each will receive a further substantial sum on the applicant's death. Even allowing for the forgiveness of the $335,000.00 debt and excluding that asset from those at the testator's disposal, the assets at his disposal were such that, given the primary claim of the applicant, the testator as a wise and just husband, in my view failed in his duty to make adequate provision in his will for the proper maintenance and support of -- 18 of 31 -- 18 the applicant. He did this by failing to make available to her some capital payment to permit her to replace her car which he must have known was some 17 years old and by failing to make some capital payment to provide her with a fund to which she could have recourse to meet some unforeseen and unexpected expense. This latter fund, as I find, was needed to provide the applicant with comfort and get rid of any pecuniary anxiety. I should here say that Mr. McGill, in his submissions, conceded that the applicant had been a dutiful and loving spouse to the testator. As I have said the marriage had lasted 20 years. As Gibbs J. (as he then was) said in Goodman v. Windeyer (1980) 144 C.L.R. 490 at p. 497 when referring to Bosch v. Perpetual Trustee Co. (1938) A.C. 463:- "Their Lordships cited with approval a passage from the judgment of Salmond J. in Re Allen deceased; Allen v. Manchester (1922) N.Z.L.R. 218 at pp. 220-221 which has since very frequently been repeated:- ' The Act is designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances." Here, one of the circumstances was that the applicant and the testator had led a comfortable life style, with a number of overseas trips and trips within Australia and with the testator paying all expenses of the applicant and with the applicant not having any need to have a bank account of her own. The -- 19 of 31 -- 19 applicant was, it seems, free from financial worries during her marriage to the testator. In Re Allen, Allen v. Manchester ( 1922) N. Z .L .R. 218, Salmond J. said (at p. 222):- "It may probably be said with truth that the proper maintenance which a testator owes to his widow in ca~es where there are no competing moral claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's life time, and would have been so accustomed to if her husband had then done his duty to her." This passage was cited with approval by the New Zealand Court of Appeal in Re Crewe (deceased) (1956) N.Z.L.R. 315 at p.323. Under the present monthly payment system, the applicant, if she wished to replace her aging car (which she has since sold), needed to save from her income as she had no capital to fall back on. I note in passing that in Goodman v. Windeyer (supra) Gibbs J. (at p. 500) referred to the contingencies of life to which regard should be had and in the course of so doing said:- "Further, it is apparent that from time to time it will be necessary for the appellant to draw on her capital - for example to buy a new car - thus reducing her source of income." In the instant case, the testator should, as I have said, provided for the contingency of the car replacement despite the applicant's advancing years. He had the means to do so. The applicant then held and indeed still holds a licence to drive automatic motor cars. As I have said the car has been sold for $1,000.00. Between 1st July, 1988 and 30th June, 1989 a cab charge account used by the applicant has been paid by the executors and the total was $444.41. It has continued to be paid in the six months to the 31st of December, 1989 and then totalled $121.95. -- 20 of 31 -- 20 And so, having decided that I do have jurisdiction to make an order in the applicant's favour, I turn now to the discretion given me by s. 41 of the Succession Act. I exercise that discretion by reference to, among other things, the value of the estate at the date of the hearing. The estate at the present time has a nett worth of some $960,051.80 based primarily on values as at 31st December, 1989. This figure is arrived at from figures appearing in ex. A to the affidavit of the executors filed on 5th February, 1990 read with para. 2 of the affidavit of Kenneth Arthur Copeland sworn on 21 st February, 1990 and adding thereto the interest free loan of $335,000.00 referred to in cl. 4 of the will and an increase in the value of the Gold Coast unit of $35,000.00. The following are anticipated costs to be deducted from this sum of $960,051.80:- Applicant's estimated costs of this application - upto $30,000.00 Respondents' estimated cost of this application - $11,000.00 $41,000.00 The nett balance then remaining is some $919,000.00. Counsel agreed this was the correct figure. If one were to bring to account the three sums totalling $450,000.00 paid to the three children in 1978 and which really were the results of gifts made by the testator many years earlier the assets of the testator were substantially over one million dollars. However, I deal only with what is presently available. I do not consider that the interest free loan of $335,000.00 which is the subject of cl. 4 of the will should be touched. This effectively reduces the above sum of $919,000.00 by that amount. -- 21 of 31 -- 21 The present income paid to the applicant is $22,380.00 per annum or $1,865.00 per month. This is subject to increase by the indexation formula in the will - the next increase to occur (assuming the CPI rises) after 30th September, 1990. Income tax is said to be $4,500.00 on $22,380.00 per annum. That was Mr. Copeland's evidence. However, there is also a letter dated 19th February, 1990 from KPMG Peat Marwick in which the estimated tax payable by.the applicant for the year ended 30th June, 1989 is $7,083.58. I propose to act on that figure and not the $4,500.00. I think Mr. Copeland was giving me the primary tax and not taking into account the provisional tax. It may well be that in the year ended 30th June, 1990 the provisional tax paid for the 1989/90 year will result in the applicant paying something less than the $7,000.00 odd for income tax. It is quite clear that the testator has drawn his will carefully and taken into account the effects of inflation on the monthly income payable to his widow. He has provided her with a life interest in a home and effectively required his estate to meet virtually all outgoings in respect of that home. The statement of assets and liabilities of the estate as at 31st December, 1989 shows that substantial funds are held in accounts with the ANZ bank and with the ANZ Executors and Trustees - Common Fund. These totalled some $419,000.00 as at 31st December, 1989. I should here say that the former matrimonial home at 23.Mars Street, Coorparoo, was sold by contract dated 7th March, 1989 for $180,000.00. Nett receipts from this sale totalled $173,561.67. The house was sold at the request of the applicant -- 22 of 31 -- 22 who wished to live in a retirement village at Buderim. The executors acquired a leasehold unit in a retirement village at Lindsay Gardens in Buderim. The applicant now resides there. The cost of this unit was $113,737.70 and the cost of furniture for the unit was $16,926.70. The total cost therefore was $130,664.40. These payments were made by the trustees. At present monthly payments for the unit of $195.00 per calendar month are made by the trustees. This monthly payment will increase shortly to $261.00. The trustees also pay telephone and electricity accounts as well as the Lindsay Gardens management fee. The change over in the residence from 23 Mars Street to Buderim resulted in what may be called a "profit" to the trust capital of some $43,000.00 with outgoings remaining much the same. Initially the Buderim unit may have been less costly per annum than Mars Street but with increasing monthly charges, the gap will close. The applicant has executed a document to the effect that she holds the unit and the furniture bought on the same terms and conditions as in cl. S(a) of the testator's will. The figures provided by the applicant as to her needs at 20th October, 1989 show that the income she receives is sufficient to meet these needs, namely $279.00 per week. In her latest affidavit the applicant has disclosed the following assets:- 1. 2. Building Society account ANZ High Performance Savings Account $5,009.06 $ 602.10 3. Personal belongings and jewellery - indeterminate value. If the applicant obtains a car for her use she will have to pay for its running costs, i.e. petrol etc. The applicant's figures showing $279.00 per week do not take car running -- 23 of 31 -- 23 expenses into account. As I have said earlier Mr. McGill sought to reduce the $279.00. The telephone cost ($8.00) should be deleted because the trustees pay this. Mr. McGill argued that the clothing should be reduced from $55.00 to $40.00 per week, that the garden and plant expenses should be reduced from $10.00 to $5. 00 per week and that "other medical expenses" which included Chemists' fees should be reduced from $15.00 to $10.00. If these reductions were all made the applicant's needs would be $246.00 per week exclusive of car running expenses. Accepting that $246.00 per week is the true figure (excluding car running costs) the yearly cost is $12,792.00. Add to this the estimated income tax of $7,083.00 and total costs are not far short of $20,000.00. The present gross annual income is $22,380.00 and thus the applicant would have some $2,400.00 per annum to meet car running expenses and any other matters requiring money payments which may crop up. I must say that while the telephone cost should be deleted, I am not satisfied that the other i terns complained of are too high. As I have already pointed out, if I accepted that $246.00 per week is correct the applicant has some $45.00 to $55.00 per week left. I do not overlook that in cl. 5(a) of his will when referring to the life interest in the house and the right to buy another in lieu the testator referred to that other house being "in keeping with the standard to which my said wife is accustomed". Later, in cl. 5(c) of his will the testator referred to the amount required by the wife "to maintain her living standards to which she is accustomed". Obviously then the testator was aware of the applicant's living standards and desired that they be maintained. -- 24 of 31 -- 24 I am satisfied that the applicant has been able to save moneys from the monthly payments which she has received. So far she has been able to pay her tax for which she must undoubtedly save; she has spent some $7,000.00 towards an overseas trip and she has paid between $4,000.00 and $4,500.00 to her solicitor on account of costs of this application. She will probably receive most if not all of this money back once the order for costs which I propose to make takes effect. She also received money from Mr. Geoffrey Box after the testator died and put $2,000.00 into her account. On the 3rd June, 1988 she swore that she had $10,000.00 in her bank account. I gather that this was before her overseas trip. I believe the executors have dealt with the applicant in an open handed rather than in a tight fisted manner, e.g. by paying her telephone account although the telephone account was not mentioned in the will, the executors taking the view that it was necessary to do so. Perhaps they felt it came within a "charge of every description II within cl. 5 (a) of the will. The applicant has a licence to drive an automatic motor car - it expires in August next and is renewable thereafter on an annual basis. I think that the applicant should have the use of a new motor car and that the testator in his will should have provided for a replacement of her then 17 year old car. The question is how best to go about it? Should the car be a hired one e.g. a taxi cab paid for by the Estate through cabcharge or should she have the independence of having her car at hand to drive herself whenever she wishes? Given the applicant's age and given that any licence is subject to annual renewal, it is not improbable that the applicant may drive a car for a comparatively short number of years. She is now approaching her 73rd birthday. She -- 25 of 31 -- 25 says her health is good and I have no reason to disbelieve her. She appeared to be quite well whi.le giving evidence. She plays bowls at Buderim and frequently travels to her daughter at Lake Cootharaba which is not far from Buderim. How this journey is made is not stated. I have no evidence as to the cost of a new automatic car. Mr. McGill suggested, in cross-examination of the applicant, small cars such as a Mitsibishi Colt or a Ford Laser. No value was assigned. The testator himself drove a Jaguar which had a value at date of death of $13,500.00. As I have said, the change in the house from Mars Street to the unit at Buderim has resulted in the estate having a "profit" of some $43,000.00. Although there is no evidence as to the value of a new automatic motor car I have decided that the problem will be best overcome by my directing that the will be read by including in cl. 5 a further clause reading:- "(ca). To provide for my wife's use and enjoyment and at her request and for so long as she shall be licensed to drive an automatic motor car one new automatic motor car at a cost to my residuary estate of not more that $25,000.00 such cost to include initial registration of the said motor car and initial comprehensive insurance of the said motor car to its full value against damage loss or destruction on terms of motor vehicle insurance to be decided by my trustees, my trustees to pay the costs of all renewals of such registration and insurance of the said motor car and when my wife is no longer able to obtain a renewal of her licence to drive an automatic motor car such motor car is to be returned to my trustees where -- 26 of 31 -- 26 upon the said car shall revert to and form part of my residuary estate and be held upon the remaining trusts herein declared in respect thereof PROVIDED ALWAYS that the provisions of s. 48 of the Trusts Act 1973 (as amended) shall apply to this sub-clause (ea)." I have decided that the above provision which will give the applicant a limited interest - less than a life interest - in the car can be achieved by use of the trust structure in cl. 5 of the testator's will (see : Jarman on Wills - 8th edition, p. 1181). It is my intention that the applicant do have a motor car for her use while she is licensed to drive one. She will pay all running expenses including petrol, maintenance and repairs. With a new car these should not be beyond her monthly income limits. I have already noted that the executors have been paying a cab card for the applicant and I would expect that, given the executors' attitude so far displayed to the applicant, the executors will, when the applicant is no longer licensed to drive a motor car, provide her with cab card facility. I should perhaps say why I have selected the above figure of $25,000.00 despite lack of evidence. I note that in Sharman v. Evans 138 C.L.R. 563 at 579 Gibbs & Stephen JJ. referred to various matters including drives in a chauffeur driven car. I do not understand there was any evidence as to such costs but they were included in assessment of damages reasonably foreseeable. I also consider that cars are a fact of life and their costs are of sufficient notoriety to enable me to take judicial notice of the fact that a good automatic car can be bought for a price upto $25,000.00. The $25,000.00 figure is a limit for the -- 27 of 31 -- 27 executors and trustees and I do not believe I needed evidence as to values of new cars. Apart from the provision of the motor car, I consider that the testator should have provided a cash sum sufficient to relieve the applicant from fears and anxieties. As I have already said this is quite a large estate. I respectfully adopt the view of Adam J. stated in Re Buckland ( deceased) ( 1966) Victorian Reports 404 at p. 415 where, after referring to a statement of Dixon C.J. in Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 C.L.R. 9 at p. 19:- "The words 'proper maintenance and support' although they must be treated as elastic, cannot be pressed beyond their fair meaning" and citing a passage from Bosch's case (1938) A.C. 463 at p. 477, His Honour said:- "I consider the proper conclusion to be drawn from the authorities is that the Court's jurisdiction, whatever the size of the estate, is limited by the claimant's need for maintenance and support; but that the maintenance and support to which he or she may for this purpose be treated as needing is that appropriate to his or her station or condition in life. For a child, particularly a dependant daughter of an exceptionally wealthy father, the standard of maintenance may justly be set high ensuring a degree of comfort and freedom from anxiety for the future which for those not so circumstanced might well seem somewhat extravagant, but it should fairly come within the conception of maintenance and support. The greater the estate the more may contingencies, even remote contingencies which may arise in the future, be provided for in the assessment of such maintenance." I am well aware that the discretion which I am presently exercising does not mean that I should rewrite the will of t~e testator ( see Scales case at p. 19 and Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. 143 C.L.R. -- 28 of 31 -- 28 134 at 146). Simply because the applicant is in her 73rd year it does not mean that she cannot ·receive a lump sum in addition to her monthly payment. In White v. Barron (144 C.L.R. 431 at p. 444-5) Mason J. (as he then was) said:- "Community attitudes have so altered that it is now generally accepted that a widow should be maintained for life, rather than during widowhood. Nor do I subscribe to the proposition that an order in favour of a widow should necessarily be confined to an income provision. Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure that the provision which is made is adequate for the proper maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who· is not young, may, in the event of her early death,' result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy." I think that in this case some capital sum, not a large one should be paid to the applicant to relieve her from fears and anxieties. I do not believe that it should be a sum which depletes the estate assets substantially; nor must it be a sum which in the event of the applicant's early death will result in a substantial benefit for her relatives. The evidence of Mr. Copeland shows how the executors propose to invest the estate assets once this case is finished. He says that the nett estate is presently earning some $70,000.00 per annum. It appears from his affidavit sworn on 21st February, 1990 that the bulk of the nett estate is the money in ANZ Executors and Trustees Common Fund. This fund presently earns income at c.16.25% per annum. I infer that almost all of the $70,000.00 represents income from that Fund. Once this case is finished -- 29 of 31 -- 29 the executors propose to follow an broad outline of which is set out investment programme the in Mr. Copeland' s last mentioned affidavit. This programme will be intended to avoid a situation where, because of anticipated increases in the C.P.I. and in the costs and expenses payable in accordance with the will, the moneys payable to or on account of the applicant will exceed the actual income earned by the estate. In arriving at the capital sum to be paid to the widow I have taken these matters into account, as well as other matters in Mr. Copeland's last mentioned affidavit and the evidence generally before me. I have also had specific regard to the further facts viz. that C.P.I. is expected to increase, that C.P.I. reflects increased costs of living, that the applicant's expenses as at 20th October, 1989 be they $246.00 or $279.00 per week will increase, that with increased income the applicant's tax liability will increase, that the applicant will have to bear the running costs of the car, that the applicant has demonstrated an ability to save money since the testator's death, the life style of the applicant during her marriage with the testator and the expressions in the testator's will as to that life style. I have also taken into account the admonition in the above quoted extract from Mason J.'s judgment in White v. Barron (supra) at pp. 444-5. I would therefore add a further clause to the said will reading:- 113 A I give and bequeath to my wife Elisabeth Bernhardine Box absolutely free of all duties the sum of $25,000.00." -- 30 of 31 -- 30 I decline to vary the will by deleting the proviso at the end of cl. S(c) of the will. As to costs I order that the costs of the applicant of and incidental to this application, including reserved costs if any, be taxed as between solicitor and client and be paid out of the estate of the testator. -- 31 of 31 --