Baldwin v Favre

The present application involves two properties: Pindimar and Breakfast Pt.

From 2002 until his death in 2023, the plaintiff, Ms Baldwin, lived in a de facto relationship with the late Mr William Harvey Fisher. The defendant, Ms Favre, is Mr Fisher's daughter from his previous marriage and the executor of his estate under his will made on 23 July 2015.

In his will, Mr Fisher left Ms Baldwin a portable life interest in Pindimar. However, Ms Baldwin disputes that is proper provision. In these proceedings, which are ready to be allocated a hearing date, she seeks a family provision order under the Succession Act 2006 (NSW) that, in lieu of the interest, she receive Breakfast Pt absolutely.

This judgment resolves Ms Baldwin's application for an interim family provision order under s 62 of the Act that she be allowed to reside at Breakfast Pt in lieu of Pindimar, or for injunctive relief to prevent Ms Favre dealing with Breakfast Pt.

Applications for interim provision, while infrequent, generally involve payment of a sum of money to the applicant. This case at bar is unusual because it involves comparison between rights in two properties. This circumstance is why the Court is not satisfied for the purposes of s 62 that “no less provision" than the interim order sought by Ms Baldwin would ultimately be made.

However, the Court is well satisfied that Ms Baldwin has demonstrated a seriously arguable case in relation to her claim for some interest in Breakfast Pt and that she is entitled to an injunction allowing her to occupy Breakfast Pt, and that it not be dealt with, until the final hearing. That injunction will be ordered upon Ms Baldwin giving certain undertakings which the Court has determined meet the concerns raised by the estate in relation to the balance of convenience.

Mr C Birtles of Counsel appeared for Ms Baldwin. Mr D Liebhold of Counsel appeared for Ms Favre.

It does not appear from the evidence read before me that the facts pertinent to the present application will be seriously in dispute at the final hearing, although the Court notes that Mr Liebhold (who is not briefed on the final hearing) understandably reserved his client's position insofar as the hearing before me did not involve any cross-examination, which will not be the case at the final hearing. For the purposes of the present application, being one in which the Court does not make findings of fact, I have taken account of the following facts for the purposes of forming the opinion required under s 62 of the Act and weighing the strength of Ms Baldwin's case for the purpose of injunctive relief.

Ms Baldwin is 63 years old and was born in the Philippines. She has little formal education, having only completed year 6 and left school at the age of 11 to work on her family's farm. She came to Australia in 1989 sponsored by the man who became her first husband, Mr Robert Baldwin. She had two sons with Mr Baldwin. Meaning no disrespect by using only their given names, those sons are Scott (born 1989) and Michael (born 1990). She divorced Mr Baldwin in 1993 and thereafter was sole carer for her sons.

Ms Baldwin met Mr Fisher in 2002 at the Burwood RSL, where she was then employed. He told her that his children from his first marriage were all adults. Mr Baldwin had four children from his first marriage including Ms Favre, of whom three survive.

A romantic relationship between Ms Baldwin and Mr Fisher began shortly thereafter and before the end of the year she and her two sons had moved in with him. From 2011, she ceased all employment and was thereafter wholly financially dependent on Mr Fisher until his death. Her evidence discloses current personal assets valued at less than $10,000.

In 2008, Mr Fisher and Ms Baldwin inspected Breakfast Pt and Ms Baldwin paid a $2,000 cash deposit towards its purchase. It was purchased in Mr Fisher's name only, a fact of which Ms Baldwin says she was unaware until after his death. Mr Fisher, Ms Baldwin and her two sons then moved into Breakfast Pt. Ms Baldwin's evidence is that Mr Fisher represented to her more than once that Breakfast Pt was for her and her sons, and that Pindimar was for him and his family from his first marriage.

It is convenient to say something at this point about the two properties. Breakfast Pt is a two bedroom apartment in a secure complex. While she lived there, Ms Baldwin built up connections with a nearby Catholic church and services such as the local medical practice. It is in an urban area with all the amenities one might expect nearby.

Pindimar, where Ms Baldwin is currently living pursuant to the interest, is a four bedroom home on a one acre property on the central coast, more than 200 kilometres north of Sydney. It has no shops or services, the nearest being 15 kilometres away at Tea Gardens. The nearest department store or specialist medical services are 50 kilometres distant, and the nearest hospital is at Maitland, 66 kilometres away from Pindimar. Ms Baldwin says she does not feel safe at Pindimar and that she wishes to live at Breakfast Pt.

There is a dispute between the parties about the value of the two properties.

Pindimar has been valued for probate purposes at $1.15 million. Ms Baldwin's evidence values Pindimar at between $1.5 and $1.6 million, Ms Favre's evidence includes valuations between $1.1 and $1.5 million.

Breakfast Pt has been valued for probate purposes at $1.4 million. Ms Baldwin's evidence includes two valuations of $1.5 to $1.55 million. Ms Favre's valuations are between $1.785 and $2 million.

In 2009, Mr Fisher moved to Pindimar.

After a period of splitting her time between the two properties, from 2012 Ms Baldwin was living permanently with Mr Fisher at Pindimar. Her sons remained at Breakfast Pt with (according to Ms Baldwin) the knowledge and consent of Mr Fisher, including contributing to outgoings after they commenced employment. Ms Baldwin visited, and visits, them there monthly. They continue to live at Breakfast Pt, notwithstanding a demand by the Estate that they vacate the property on the basis that they have no enforceable right to remain there.

Ms Baldwin appears to have been a loving and attentive partner to Mr Fisher, being with him and caring for him throughout their relationship until the day he died in her presence on 30 April 2023. These proceedings were commenced in time by summons filed on 16 October 2023.

The estate is valued for probate purposes at $3.4 million, comprising primarily the two properties, together with cash, shares and personal effects.

Mr Baldwin had a superannuation fund. As at March 2024, the value of that fund was $614,000. By reason of a binding nomination made by Mr Fisher, Ms Baldwin is entitled to draw (and is now drawing) a monthly pension from the fund, currently totalling $98,000 per annum.

The interest is created by Clause 6 of the will, which includes:

The residuary beneficiaries under the will are Mr Fisher's three surviving adult children and his grand-daughter. Each of the children has put his or her circumstances in issue, and Mr Liebhold was instructed that Mr Fisher's grand-daughter also intended to do so.

By notice of motion filed on 29 February 2024, Ms Baldwin seeks:

Ms Favre has given an undertaking not to deal with Breakfast Pt until the present motion is determined. However, she has not agreed to Ms Baldwin's requests that the estate agree to Breakfast Pt becoming the subject of the interest in substitution for Pindimar.

There was no dispute about the applicable principles.

Section 62 of the Act provides:

I respectfully adopt and apply the summary of the principles in relation to applications for interim provision set out in the judgment of Meek J in Byrd v Margiotta [2023] NSWSC 1556 at [65] - [95].

Of some importance to the present application is the parties' acceptance that the test to obtain interim provision under s 62 is different to, and in practical operation more stringent than, that required to obtain injunctive relief in equity: see Byrd at [90]. There can be no doubt that the Court can restrain an executor from dealing with estate property in its familiar jurisdiction to make orders preserving the subject matter of the dispute: Boaz v Hyde [2014] NSWSC 1591 per Hallen J at [19] - [21]. The difference in approach between the two bases for relief was also discussed by Parker J in Le v Angius [2022] NSWSC 240, in which his Honour said (and I respectfully agree):

Mr Birtles submitted that at the final hearing Ms Baldwin's claim would be for an absolute devise of Breakfast Pt in lieu of the interest in Pindimar, together with a further sum to supplement what she will receive from the fund.

He submitted that Ms Baldwin, as Mr Fisher's loving partner of some twenty years, had a strong case that, given the practical differences between the two properties, the interest in Pindimar was inadequate provision for her accommodation, whereas an absolute interest in Breakfast Pt was clearly proper provision for her. At Breakfast Pt she would be in a home which she had been involved in selecting, and that was close to shops, services and the church with which she wished to be affiliated.

It followed, so the argument went, that the Court could form the requisite opinion under s 62 that she would receive at final hearing no less than a portable life interest in accordance with clause 6 of the will but in relation to Breakfast Pt. The interim provision order sought would also enable Pindimar to be sold, with Ms Baldwin acknowledging that in the first instance the proceeds of sale would be available to Ms Favre as executor for the purposes of administration of the estate, including for the conduct of these proceedings.

Alternatively, it was contended that these same considerations satisfied the requirement for injunctive relief and that the balance of convenience clearly favoured Ms Baldwin in ensuring that Breakfast Pt remained available rather than being at risk of sale in the course of administration of the Estate.

Insofar as there was a dispute between the parties about the value of the two properties, the course proposed by Ms Baldwin also had the advantage that at least the doubt about the value of Pindimar would be resolved by its sale.

Mr Liebhold submitted that Ms Baldwin's case for additional provision was weak because the will provided what the law expected for a partner of many years who had been dependent on the deceased, being secure accommodation for life and adequate income: see, for example, Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [98] to [109] (per Brereton JA; Simpson AJA agreeing).

Furthermore, insofar as the present motion was concerned, Ms Baldwin was not complaining of any urgent need that required satisfaction before any final hearing: she had a roof over her head and adequate income from the fund. Nor, for these reasons, could the Court be satisfied that Ms Baldwin would ultimately receive no less than the proposed interim provision, especially given the dispute between the parties about the value of the properties and the competing claims advanced by the residuary beneficiaries.

It was also submitted that the Estate was quickly depleting its available cash and that Breakfast Pt needed to be sold to provide funds, including for the defence of these proceedings.

The same arguments were relied upon to demonstrate that the threshold for interlocutory relief had not been met. The balance of convenience, given the Estate's need for funds, was not in favour of preventing the sale of Breakfast Point. Furthermore, Ms Baldwin was said not to be able to give a meaningful undertaking as to damages.

Finally, it was submitted that it was open to the Court to find that Ms Baldwin's application was motivated by a desire to delay the administration of the Estate to the advantage of her sons, especially insofar as they were enjoying free accommodation at Breakfast Pt because they were not paying any occupation rent. I immediately record the Court's rejection of that submission about Ms Baldwin’s motivation as not supported by the evidence.

I also record that, correctly in my respectful view, Mr Liebhold did not suggest that as a matter of principle an injunction could not be granted in aid of an application under the Act, including one which might contain a mandatory element insofar as it could require the estate to permit Ms Baldwin to occupy Breakfast Pt.

In my experience, applications for interim provision are infrequent. I respectfully agree with Meek J's observation in Byrd that a major cause for hesitation on the part of potential applicants is what I shall refer to as the "no less than" requirement. The requirement is more easily satisfied where the interim provision is a sum of money. It is more straightforward for the Court to form the requisite opinion where the amount sought is a modest one and the case for provision (or additional provision) in money at the final hearing is reasonably clear.

However, this case is unusual in that it involves a comparison between two properties where they are clearly of two different kinds and where there is a dispute about their values. The comparison invited by Mr Birtles is certainly open: Ms Baldwin will be asking for Breakfast Pt absolutely and, perhaps, an additional fund, but she will get no less than a portable life interest in Breakfast Pt on the terms of clause 6 of the will. However, it is not obvious, for example, why the value of the interests is not the correct comparator rather than the nature of the interest in meeting the "no less than" requirement.

Furthermore, and more pertinently, I am not satisfied on the balance of probabilities that Ms Baldwin will receive "not less than" the portable life interest in Breakfast Pt. This is because, in that event, I consider there is a more than fanciful possibility that at the final hearing the Court may, if it takes the view open on the evidence that Breakfast Pt is worth more than Pindimar, require some kind of financial adjustment between Ms Baldwin and the residuary beneficiaries, given Mr Fisher's explicit testamentary intention that his children should obtain the benefit of Breakfast Pt. An important part of this potential equation is the competing circumstances of those beneficiaries, a matter which the Court cannot sensibly make an assessment about in the circumstances of an application of this kind. Nevertheless, the point for present purposes is that the effect of such an adjustment might mean that Ms Baldwin does get something "less" than a portable life interest in Breakfast Pt simpliciter.

For this reason, the Court is unable to form the requisite opinion in relation to the "no less than" requirement. The discretion to make the interim provision order sought by Ms Baldwin is therefore not engaged.

That being said, the Court is well satisfied that the reasons advanced by Mr Birtles demonstrate that Ms Baldwin has a seriously arguable case that she is entitled to a family provision order under the Act that will give her a proprietary interest of some kind in Breakfast Pt, whether that be a portable life interest or an absolute devise. She has given evidence that if she is permitted to live at Breakfast Pt pending determination of the proceedings, she will vacate Pindimar within six weeks to enable it to be sold.

The balance of convenience clearly favours preservation of Breakfast Pt. The proceedings are ready to take a hearing date, which could still be a date late this year. Contrary to the submission put for Ms Favre, the existence of the fund means an undertaking as to damages by Ms Baldwin has substance. The other matters of concern which were raised on behalf of the Estate were Ms Baldwin to be allowed to occupy Breakfast Pt can be adequately addressed by provision of the undertakings which I propose below.

Finally, I record that even if I had been satisfied that the discretion to make an interim provision order had been enlivened in this case, I would not have done so in preference to laying an injunction. While an interim provision order can be made on terms, in my respectful opinion the mechanism of an injunction with undertakings offers greater flexibility to fashion an interlocutory solution which does justice to both parties.

An injunction also has the advantage that at the final hearing the Court can consider Ms Baldwin's application for provision as a blank canvas. If an order for interim provision had been made, then the Court would be constrained by the requirements of s 62(2) of the Act, even if it might be argued that those constraints may be seen as more theoretical than real.

Subject to any further submissions the parties may wish to make as to their final form, the undertakings and orders the Court proposes are: