JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MILLS -v- PILLER [2017] WASC 45
CORAM : ACTING MASTER STRK
HEARD : 16 NOVEMBER 2016
DELIVERED : 23 FEBRUARY 2017
FILE NO/S : CIV 2696 of 2015
BETWEEN : KAYE MILLS
Plaintiff
AND
HELEN PILLER as Executor of the Estate of LUBA CHRISTOU
First Defendant
MENKA COLLINS as Executor of the Estate of LUBA CHRISTOU
Second Defendant
JOHN CHRISTOU as Beneficiary of the Estate of LUBA CHRISTOU
Third Defendant
MENKA COLLINS as Beneficiary of the Estate of LUBA CHRISTOU
Fourth Defendant
HELEN PILLER as Beneficiary of the Estate of LUBA CHRISTOU
Fifth Defendant
JAMES CHRISTOU as Beneficiary of the Estate of LUBA CHRISTOU
Sixth Defendant
Catchwords:
Family Provision Act 1972 (WA) - Claim by adult daughter - Whether further provision ought to be made - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Non-Contentious Probate Rules 1967 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Ms W F Gillan
First Defendant : Mr M Curwood
Second Defendant : Mr M Curwood
Third Defendant : In person
Fourth Defendant : Mr M Curwood
Fifth Defendant : Mr M Curwood
Sixth Defendant : In person
Solicitors:
Plaintiff : Armstrong Legal
First Defendant : Kitto & Kitto
Second Defendant : Kitto & Kitto
Third Defendant : In person
Fourth Defendant : Kitto & Kitto
Fifth Defendant : Kitto & Kitto
Sixth Defendant : In person
Case(s) referred to in judgment(s):
Baxter v Baxter [2014] VSC 377
Blore v Lang (1960) 104 CLR 124
Braun v Australian Executor Trustees Ltd [2014] WASC 210
Briginshaw v Briginshaw (1938) 60 CLR 336
Butcher v Craig [2010] WASCA 92
Chappell v Hewson [2013] WASCA 15
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Goodman v Windeyer (1980) 144 CLR 490
Grey v Harrison [1997] 2 VR 359
Kennedy v Kennedy [2016] WASC 210
Kitson v Franks [2001] WASCA 134
Maas v O'Neil [2013] WASC 379
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Wheat v Wisbey [2013] NSWSC 537
1 ACTING MASTER STRK: By an amended originating summons, the plaintiff (Ms Kaye Mills) seeks an order under s 6 of the Family Provision Act 1972 (WA) (Family Provision Act) that adequate provision be made out of the estate of the late Luba Christou for her proper maintenance, support, education and advancement in life.
Background
2 Ms Luba Christou, late of 114 Vincent Street, North Perth (the deceased) died on 3 April 2015 aged 83. The deceased was survived by her five adult children. They are the plaintiff (Ms Mills), the first and fifth defendant (Ms Helen Piller), the second and fourth defendant (Ms Menka Collins), the third defendant (Mr John Christou), and the sixth defendant (Mr James Christou).
3 The deceased made her will on 24 January 2003. Probate of that will was granted on 15 June 2015 to Ms Piller and Ms Collins, the executors named under the will. By her will the deceased gifted all of her property to her five children in equal shares.
The estate
4 The deceased left an estate which was primarily comprised of two properties in North Perth:
(a) 110 Vincent Street, North Perth (110 Vincent Street); and
(b) 114 Vincent Street, North Perth (114 Vincent Street).
In addition to the properties, the deceased had some household goods and effects and cash on deposit.
5 In support of the application for the grant of probate, Ms Piller and Ms Collins prepared a statement pursuant to r 9B(1) of the Non-Contentious Probate Rules 1967 (WA) which prescribed a value of $19,369.43 for the total movable property of the deceased and $2.2 million for the total value of the immovable property of the deceased. Liabilities were estimated to be $7,632.76. The net value of the estate as at the date of death was estimated to be $2,211,736.67.
6 Prior to the hearing, Ms Piller and Ms Collins prepared an updated statement of assets and liabilities. As at 1 November 2016, the net value of the estate had reduced slightly to be worth an estimated $2,158,450.82.1 However, the estimated value of the two North Perth properties remained the same as at the date of death; namely, $1.3 million for 110 Vincent Street and $900,000 for 114 Vincent Street. Ms Mills proffered evidence to the effect that the estimated value of the two North Perth properties may be greater than the estimate provided by the executors. Ultimately, for the purpose of determining the application, nothing turned on the difference.
Value of each share to each child
7 Without taking into account administration expenses or the costs of these proceedings, if the executors' estimate of the estate's value is correct and if the will remains undisturbed each of the deceased's children will receive a little over $400,000.
Ms Mills' claim
8 Ms Mills is a child of the deceased and therefore has standing to bring these proceedings.2 By these proceedings, Ms Mills seeks adequate provision from the sale of 110 Vincent Street and 114 Vincent Street. In particular, she seeks:
(a) a direction for a sale of 110 Vincent Street before a sale of 114 Vincent Street;
(b) a right of occupation of 114 Vincent Street until three month after the property at 110 Vincent Street is sold and settled;
(c) an immediate payment out of the proceeds of the sale of 110 Vincent Street of her provision out of the estate so as to enable her to move from 114 Vincent Street in an orderly fashion; and
(d) for further provision to be made in a fixed sum to her from the estate, in substitution for her share in the residuary, of $650,000.
General principles applied in Family Provision Act claims
9 There was no dispute between the parties as to the applicable principles. What follows is largely taken from the submissions of the fourth and fifth defendants.
10 The general principles to be applied in Family Provision Act claims are well known. Pritchard J summarised succinctly the principles to be applied and the two-step process in Maas v O'Neil as follows:3
[An] application under that Act is brought pursuant to s 6(1) which permits an application to be made by certain persons (including, relevantly, a child of the deceased living at the date of his or her death) on the basis that the disposition of the deceased's estate effected by their will was not such as to make adequate provision from the estate for the applicant's proper maintenance, support, education or advancement in life. If the provision is inadequate, the Court has the discretion to make 'such provision as the Court thinks fit out of the estate for that purpose'. It is well established that s 6 thus encompasses a two stage process.
The question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider an applicant's financial position, and his or her need for, and moral claim to, provision from the estate, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty, and the size of the estate, as at the date of the testator's death. The terms 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provisions Act encompass not only provision for the supply of the necessaries of life, but also extend to provision over and above a mere sufficiency of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life.
In exercising the discretion under s 6(1) of the Family Provisions Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant. The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances. Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it. The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.
Section 6 of the Family Provisions Act confers a wide discretion on the Court at each stage of the two stage analysis.
Principles applicable to claims by adult children
11 The principles to be applied with respect to claims by adult children were conveniently summarised in Wheat v Wisbey4 and in Braun v Australian Executor Trustees Ltd.5 Those principles are:6
(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58].
(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland (dec'd) [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland (dec'd) at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].
(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.
(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].
(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
(h) Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of an applicant's case.
(i) There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.
12 In assessing the question of whether the deceased's responsibility and moral duty to a claimant has not be discharged, such that the right and freedom of testamentary disposition has been abused, the court may have regard to the seriousness of that allegation by the claimant and the difficulty in assessing the evidence in the inevitable circumstance that the court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw,7 and Baxter v Baxter.8
13 The proper maintenance and support must be relative to age, sex, condition and mode of life and situation generally. What is adequate must be relative not only to the claimant's needs but to the claimant's own capacity and resources for meeting them.9
14 In the context of the first stage jurisdictional test, whether Ms Mills has a need or needs involves economic considerations. Need must be considered in the context of whether Ms Mills can meet those needs from her own resources. Need is different from want and does not mean demand or desire.
15 The needs of Ms Mills and of the other beneficiaries need to be considered but that is not to say that Ms Mills is to be limited only to the 'bread and butter of life', but the court can consider that the proper maintenance, support, education and advancement of an applicant includes a little of the 'cheese and jam' of life as well.10
The plaintiff's personal circumstances and evidence to support her claim for increased provision
16 At the date of the deceased's death the plaintiff Ms Mills was 55 years of age. In her first affidavit, Ms Mills deposes to her personal circumstances as at October 2015 being as follows:
(a) she was unemployed and had not worked since November 2011. Prior to November 2011, Ms Mills had worked on a sporadic contractual basis, having secured administrative roles through recruitment companies;
(b) she lived at 114 Vincent Street. Ms Mills and her daughter Samantha had moved into the home of the deceased in about February 2012;
(c) she was in receipt of Centrelink Newstart Allowance which provided her a monthly income of $1,080. Prior to the deceased's death, Ms Mills received approximately $1,723.80 per month from Centrelink as the deceased's carer;
(d) her monthly expenses were $957 per month;
(e) she owned a car valued at approximately $8,000;
(f) she had no savings or superannuation;
(g) she had liabilities totalling $18,718 of which $15,000 was for unpaid fines owing to the Fines Enforcement Registry; and
(h) she suffered from clinical depression, anxiety, a damaged elbow that requires surgery and irritable bowel syndrome.11
17 Ms Mills was not married nor in a de facto relationship. It also appears that Ms Mills' daughter Samantha is an adult and despite her having moved in with her mother and grandmother, did not rely on Ms Mills financially. There is also no evidence of Ms Mills' children assisting Ms Mills financially.
18 In her second affidavit sworn 19 September 2016 (Second Mills Affidavit), Ms Mills explains that as at that date, her liabilities had been reduced to $16,954.96. She also explains that Centrelink had arranged for her utility bills and court fines to come out of her Centrelink payment each fortnight, so that she was left with $702.80 per month.
19 For the purpose of the hearing, counsel for Ms Mills explained Ms Mills' position as follows.
The plaintiff's position for the purposes of the hearing is that all of the siblings had appropriate relationships with their mother and she does not press any contention that her sisters or brothers refused to assist with their mother. She is content to put - she does not put her case on the basis that she has - ought to be rewarded for having lived with her mother for a number of years and provided care to her mother on an in-house basis.
That is simply a fact that is - that demonstrates the nature of the relationship that she had with her own mother and I think it's conceded by my friend, at least for the fourth and fifth defendants, that all the relationships that the children have with their mother were appropriate ones, including the one that the plaintiff had - a close and loving relationship with the plaintiff. So it's not a question of rewarding her for her caring behaviour, but it is a question - the fact that she was living there with her mum reflects the fact that she had nowhere else to live and that her resources were such at the time of her mother's death that she was dependent on her mum to the extent that she made her home with her mother (ts 6 - 7).
20 As to her needs moving forward, Ms Mills says that she had taken steps to ascertain the value of alternative accommodation. In the Second Mills Affidavit, Ms Mills provided examples of the type of accommodation and location which she believed would best suit her needs moving forward. Ms Mills was not cross-examined.
21 The first was a three bedroom, one bathroom, double garage home in Tuart Hill which had been marketed for sale from $449,000; the second was a three bedroom, one bathroom, single car garage townhouse in Joondanna which had been marketed for sale at mid to high $500,000; the third was a three bedroom, one bathroom, single car garage villa in Yokine which had been marketed for $459,000; the fourth was a three bedroom, two bathroom, single garage home in Dianella which had been marketed for $549,000 to $589,000; and the fifth was a three bedroom, two bathroom, single garage front duplex home in Dianella which had been marketed for $485,000.12
22 In the Second Mills Affidavit, Ms Mills also refers to her father's will. During the course of the hearing, counsel for Ms Mills sought to clarify the position under the will of Anastasious Christou (also known as Anastasi Christou, Chris Christo and Anastasios Christou) (deceased) late of 80 Vincent Street, Mount Lawley (80 Vincent Street). Mr Anastasious Christou was the father of Ms Mills and the defendants to these proceedings.
23 Under the will, with respect to his residence at 80 Vincent Street, Mr Christou directed that it not be sold after his death but instead may be used by his de facto partner, Ms Despina Pitris, after his death as her sole residence rent free subject to certain conditions. After Ms Pitris dies, 80 Vincent Street is to be sold. Relevant to these proceedings, one-third of 80% of the net proceeds of the sale of 80 Vincent Street is left to Mr John Christou. Ten percent of the net proceeds is left to Ms Collins. Another 10% of the net proceeds is left equally to Ms Piller, Mr James Christou and Ms Mills. Ms Mills does not seek to value her future interest in the net proceeds of sale of 80 Vincent Street for the purpose of these proceedings.
Other parties financial and personal circumstances
24 As noted above, the question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider, among other things, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty.
Financial and personal circumstances of Helen Piller
25 As at the date of the deceased's death, Ms Piller was 60 years of age. She works full time as a purchasing officer at St John of God on an annual salary of $64,593.93 (gross). Ms Piller was cross-examined. The cross-examination emphasised that Ms Piller receives a substantial tax deduction by reason of her employment for a charitable institution. She has superannuation of $87,296 and a car worth about $25,000.
26 Ms Piller is married and she and her husband own a home in South Perth valued at about $850,000. The home is mortgaged to ING in the amount of $492,835.
27 Ms Piller's husband is a concrete labourer, who of late has secured work irregularly.
28 Ms Piller has suffered from depression and anxiety for many years and has been prescribed medication to help manage her symptoms. As a result of her mental health issues, she finds it very difficult to concentrate at work. She suffers from a number of other ailments, although they do not presently prevent her from being able to work.
29 Ms Piller shares an equal interest with Ms Mills and Mr James Christou in 10% of the net proceeds of sale of 80 Vincent Street.
Financial and personal circumstances of Menka Collins
30 As at the date of the deceased's death, Ms Collins was 58 years of age. She was employed full time by Brownes as an operational support clerk shift worker, on a gross salary of $88,165 per annum. Her only source of income being her fortnightly salary from Brownes of $2,501.36 (net of tax). She has superannuation of about $95,000, a car worth about $10,000, and savings of about $30,000.
31 As at the date of the deceased's death, she was separated from her de facto partner, Mr Craig Collins. She and her partner co-owned a property in Coolbinia as joint tenants, valued at approximately $900,000.
32 Ms Collins had two adult sons, one who lived at home with Ms Collins. The son who remains in the property does not pay rent nor does he contribute to household bills. There is also no evidence of Ms Collins' children assisting her financially.
33 Ms Collins has suffered from anxiety for many years and has been prescribed sleeping tablets and antidepressants. Her evidence is that as a result of her anxiety, she struggles to function normally, and finds it increasingly difficult to carry out day to day tasks and the demands of shift work.
34 Ms Collins was also cross-examined. Her evidence at the hearing was that she and Mr Craig Collins had entered into a Binding Financial Agreement by which she would keep the Coolbinia property. She would also pay to Mr Craig Collins $490,000.
35 Ms Collins will also at some future time receive 10% of the net proceeds of sale of 80 Vincent Street.
Financial and personal circumstances of John Christou
36 During the course of the hearing, counsel for Ms Mills indicated that the plaintiff was unaware of and had not been served with the affidavit sworn by Mr John Christou and filed on 8 June 2016. This was despite there being reference to Mr John Christou's affidavit at par 17 of the submissions filed on behalf of the fourth and fifth defendants on 14 November 2016.
37 The proceedings were adjourned at midday to allow Ms Mills' counsel to consider the affidavit sworn by Mr John Christou and whether any objection would be taken to his evidence. Numerous objections were raised. In circumstances where Mr John Christou was not represented, was only informed of the objections at the end of the lunch recess, and the relevance of those parts of his affidavit subject to objection was not clear, I reserved my decision in relation to the objections raised.
38 Mr John Christou was also cross-examined. In making my decision, I have had regard to the following evidence of Mr John Christou.
39 As at the date of the deceased's death, Mr John Christou was 59 years of age. He was employed as a 'brickies labourer', working three days per week earning $228 per day.
40 Mr John Christou moved into 110 Vincent Street in about November 1998, where he still resides. He owns no other property. He won $228,000 in Lotto in November 2007. He gave the deceased $200 per week as rent during some of the period in which he lived in 110 Vincent Street, and provided financial assistance to Ms Mills by paying $37,000 worth of her bills.
41 He had superannuation of about $80,000 and a car worth about $3,000. His liabilities were in excess of $53,000. Of his liabilities, $10,000 was said to be for unpaid rent for his occupation of 110 Vincent Street.
42 Mr John Christou previously had surgery on his left shoulder, but it continues to give him pain. He also had a hernia operation in September 2015. Mr John Christou suffers from anxiety, his knees are worn and he cannot run. His right bicep and left shoulder require surgery. He says that he cannot afford to take 12 to 16 weeks off work to recover from such operations.
43 Mr John Christou was cross-examined in relation to 80 Vincent Street. From his evidence, I understand that Ms Despina Petris is alive and presently in a nursing home. In the circumstances, no steps have been taken to market or sell 80 Vincent Street. There was no evidence before me as to Ms Petris' likely life expectancy.
44 I find that Mr John Christou is to inherit one-third of 80% of the net proceeds from the ultimate sale of 80 Vincent Street. He will receive an amount larger than his siblings, particularly Ms Mills, Mr James Christou and Ms Piller. However, the timing of that sale and the timing of receipt of funds is uncertain, and the final distribution amount cannot presently be ascertained with any certainty.
Financial and personal circumstances of James Christou
45 As at the date of the deceased's death, Mr James Christou was 52 years of age. It appears that Mr Christou has two children, although it does not appear that either are dependent upon him. There is also no evidence of his children assisting him financially.
46 Mr James Christou has a de facto partner with whom he owns a 50% share of a property in Noranda, a 1% share of a property in Mount Lawley, and a 1% share of a property in Girrawheen. He states his assets to be worth about $262,000 and his liabilities to be about $88,086, although $16,500 is said to be rental arrears owed to his de facto partner.
47 Mr James Christou was also cross-examined. From his evidence, it was not possible to get a clear understanding of his current asset and liability position. The cross-examination revealed that he might be better off than was suggested by the affidavit material.
48 As to his earning capacity, as at the date of death of the deceased, Mr Christou was a contract worker at the Bayswater Hotel, earning $60,000 per annum. His contract at the Bayswater Hotel was due to end in December 2016. At the hearing in November 2016, it was Mr James Christou's evidence that he was unemployed.
49 Mr James Christou has superannuation of about $5,000, no personal savings and receives modest income from rental properties. By trade, Mr James Christou is a ceramic tiler, but due to back injury and bad knees he gave up that profession.
50 Mr James Christou shares and equal interest with Ms Mills and Ms Piller in 10% of the net proceeds of sale of 80 Vincent Street.
Determination
51 In determining the jurisdictional question, namely, whether the deceased failed to make adequate provision for Ms Mills as at the date of her death, reference should be made to four primary factors:
(a) the size of the estate;
(b) Ms Mills' needs and any moral claim that she has;
(c) the competing claims on the estate;13 and
(d) the provision made by the deceased for Ms Mills.
52 At the date of the deceased's death Ms Mills was 55 years of age. She appears to have had a close relationship with her mother. However, all of the deceased's children had what could be described as close normal relationships with their mother. None of the children were estranged from their mother.
53 The deceased's will made provision for Ms Mills. She was gifted one-fifth of the deceased's estate. She was treated equally with her siblings. Accordingly, the jurisdictional question is whether provision was adequate and proper.
54 The authorities are clear that the words 'adequate and proper' are always relative and the court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards.14
55 The following factors weigh in favour of Ms Mills meeting the jurisdictional threshold.
(1) Ms Mills is not married nor is she in a de facto relationship.
(2) She has not worked for some time. I accept that Ms Mills does suffer various ailments, that she has not held stable employment for a considerable period (if at all), and has limited means of earning an income. She receives a Centrelink Newstart Allowance each month.
(3) There is nothing in Ms Mills' expenses which suggest an extravagant lifestyle, although she does not explain the fines she owes, which are significant when considering her financial position as a whole.
(4) Prior to the date of the deceased's death, it appears that Ms Mills had fallen on hard times. She had no savings or superannuation and relied on government assistance.
(5) Ms Mills' has a lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years.
56 In such circumstances, where there are assets available, then the community may expect a parent to provide a buffer against contingencies. The terms of the will did in fact provide for such a buffer. After payment of Ms Mill's debts, she would have at least $380,000 (perhaps more, depending on the amount ultimately realised for the two properties). I find that amount to be 'adequate' and 'proper' in all of the circumstances.
57 I accept that Ms Mills does suffer various ailments. However, I also accept that her siblings each suffer various ailments. They are all of advancing age. Their capacity for full time work going forward is far from certain, particularly in light of their various ailments. They all have liabilities and modest or very little superannuation. In my view, there could be no justification for depriving the defendants of part of their inheritance.
58 I find that Ms Mills does not satisfy the jurisdictional threshold. In all of the circumstances, proper and adequate provision was made for Ms Mills under the deceased's will. She has received, in all of the circumstances adequate provision under the deceased's will taking into account her needs and moral claim on the estate, the size of the estate and the competing claims of her siblings.
59 In any event, I note that had I found that Ms Mills satisfied the jurisdictional threshold there was not evidence before me that would have justified a variation of the will on adequacy grounds. From the evidence filed by Ms Mills and the submissions of counsel, I understand that a purchase of a residential property, together with an amount of contingencies, formed the basis for her claim.
60 Annexure B to the Second Mills Affidavit sets out a number of three bedroom properties for sale in the northern suburbs of Perth. Had the jurisdictional threshold been met, it would come down to the question of why in all of the circumstances it is necessary for Ms Mills to purchase a property, particularly a three bedroom property in suburbs located relatively close to Perth. Ms Mills' evidence failed to discharge the evidentiary onus to demonstrate what provision would be required to meet her needs.15
61 The application will be dismissed. I will hear the parties as to costs.
Schedule A
______________________________________
1 Affidavit of Helen Piller sworn 1 November 2016, 'A', reproduced at Schedule A of this decision.
2 Section 7(1)(a) of the Family Provision Act.
3 Maas v O'Neil [2013] WASC 379 [16] - [19] (footnotes omitted).
4 Wheat v Wisbey [2013] NSWSC 537 [128] (Hallen J).
5 Braun v Australian Executor Trustees Ltd [2014] WASC 210 [11] (Sanderson M).
6 Wheat v Wisbey [128].
7 Briginshaw v Briginshaw (1938) 60 CLR 336.
8 Baxter v Baxter [2014] VSC 377 [59].
9 Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, 19.
10 Blore v Lang (1960) 104 CLR 124, 135 (Fullagar & Menzies JJ).
11 Affidavit of Ms Mills sworn 22 October 2015 (First Mills Affidavit).
12 Second Mills Affidavit [35], 'B'.
13 Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127, 131 (McLure JA); Maas v O'Neil [17] (Pritchard J).
14 Goodman v Windeyer (1980) 144 CLR 490, 502.
15 Chappell v Hewson [2013] WASCA 15 [31]; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 [31]