(1) B.J. Burke v Powell - Estate of M F Burke (2) I.W. Burke v Powell - Estate of M F Burke (3) Morris v Powell - Estate of M F Burke

[2006] NSWSC 108

CITATION:	(1) B.J. Burke v Powell - Estate of M F Burke (2) I.W. Burke v Powell - Estate of M F Burke (3) Morris v Powell - Estate of M F Burke [2006] NSWSC 108
HEARING DATE(S):	14/02/06, 15/02/06, 16/02/06, 17/02/06
JUDGMENT DATE :	7 March 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Legacy to each plaintiff: see paragraph [53]
CATCHWORDS:	SUCCESSION - family provision - claims by four adult children - whether each left without adequate provision - competing claim of fifth adult child to whom deceased's house devised - house only asset of estate - deceased's expressed wish to reward fifth child - relationships of the four plaintiffs and fifth child to deceased
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 213 ALR 692
PARTIES:	(1) Brian Joseph Burke - Plaintiff Melva Maree Powell - First Defendant Robin Mason - Second Defendant (2) Ian Wayne Burke - Plaintiff Melva Maree Powell - First Defendant Robin Mason - Second Defendant (3) Raylene Morris - First Plaintiff Spencer Burke - Second Plaintiff Melva Maree Powell - First Defendant Robin Mason - Second Defendant
FILE NUMBER(S):	SC (1) 6288/03; (2) 2253/04; (3) 3773/04
COUNSEL:	Mrs M.T. Bridger - Plaintiffs Mr A.L. Hill - Defendants
SOLICITORS:	(1) Baker Love - Plaintiff (2) O'Hearn & Bilinsky - Plaintiff (3) Bilbie Dan - Plaintiffs Armstrongs - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 7 MARCH 2006

6288/03 BRIAN JOSEPH BURKE v MELVA MAREE POWELL & ANOR - ESTATE OF MELVENA FLORENCE BURKE
2253/04 IAN WAYNE BURKE v MELVA MAREE POWELL & ANOR - ESTATE OF MELVENA FLORENCE BURKE
3773/04 RAYLENE MORRIS & ANOR v MELVA MAREE POWELL & ANOR - ESTATE OF MELVENA FLORENCE BURKE

JUDGMENT

1 In these three proceedings heard together, four plaintiffs claim relief under the Family Provision Act 1982. They are four of the six surviving children of Melvena Florence Burke who died on 10 January 2003 at the age of 65.

2 The deceased left a will dated 8 October 1987 probate of which was granted on 13 June 2003 to Melva Maree Powell (a daughter of the deceased, aged 45) and Robin Mason (a sister of the deceased who is now herself deceased). The plaintiffs – Raylene Morris (aged 48), Brian Joseph Burke (aged 47), Spencer John Burke (aged 43) and Ian Wayne Burke (aged 38) – claim orders that provision be made for them out of the estate of the deceased. The sixth surviving child of the deceased (Belinda Bradbury, aged 41) is not a party to the proceedings, but I am satisfied that notice of each application was given to her under s.20(2)(a) of the Act. For ease of reference I shall refer to family members by their first names.

3 By her will, the deceased made a specific devise of her house property at 22 Excelsior Parade, Carey Bay to Melva and gave the residue of the estate to her six children as tenants in common in equal shares. Alternative dispositions were made in case a primary beneficiary did not survive the deceased but, since all six children are still living, it is not necessary to refer to those alternative measures.

4 The house at 22 Excelsior Parade was still owned by the deceased at her death. The inventory attached to the probate ascribes an estimated value of $300,000 to it. The parties have agreed for the purposes of these proceedings that the present value of the house property is $357,500. The inventory otherwise includes only furniture (estimated value $2,000.00), jewellery (estimated value $2,000.00), bank accounts ($93.18) and a life insurance policy ($5,445.00) – a total of $9,538.18. The affidavit of the defendant executors refers to liabilities at the date of death amounting to $8,854.54.

5 Under the will, therefore, the house passed to Melva and she and her five siblings took in equal shares a residuary estate of negligible value. Melva and her family live in the house (as they did for many years before the deceased’s death). It is in those circumstances that the four plaintiffs maintain their claim under the Family Provision Act.

6 In calculating the value of the estate available for distribution, costs of these proceedings to be met out of the estate must be taken into account. There is no apparent reason why, in the ordinary course, the defendants’ costs will not be payable out of the estate. The defendants’ solicitor’s affidavit puts these at an estimated $71,000.00. On that basis – and leaving to one side, at this point, the possibility that other costs might also be payable out of the estate – I should regard the value of the estate as being in the order of $286,500.

7 What I have just said about resort to the estate for costs emphasises an important practical point. The Excelsior Parade house is the only asset. It follows that it will have to be sold. (Having regard to Melva’s financial position, to be mentioned presently, I discount the possibility that she could raise the funds necessary to prevent its being sold.) That realistic circumstance is one that must be borne in mind as the inquiry under the Act is made. Even if the defendants are wholly successful, sale of the house will be inevitable and the possibility of leaving Melva in occupation of the house will not arise.

8 Each of the plaintiffs is an eligible person under s.6(1) of the Family Provision Act – as, of course, are Melva and Belinda. The nature of the task the court must perform in response to each plaintiff’s application was described by Mason CJ, Deane J and McHugh J in Singer v Berghouse (1994) 181 CLR 201 at pp.208-210, expressly approved by Gummow and Hayne JJ in Vigolo v Bostin (2005) 213 ALR 692 at 706 and 711(Gleeson CJ observing at 694 that its correctness is not in dispute). There are two steps. The first is to decide the question posed by s.9(2)(a), that is, whether the provision made for the plaintiff was “inadequate for [his or her] proper maintenance, education and advancement in life”. The nature of that inquiry was explained in the majority judgment in Singer v Berghouse:

“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

9 If that threshold question is answered in the affirmative, the court must move to the second stage and decide what provision ought to be made out of the deceased’s estate for the plaintiff. The nature of that inquiry is explained in Singer v Berghouse (at p.210) as follows:

“ The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder (1951) 82 CLR 645, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

10 It is accordingly necessary to examine the circumstances of each plaintiff.

11 All the plaintiffs, together with Melva and Belinda, are children of the marriage of the deceased and Brian Wills Burke (whom I shall call “the father”). A seventh child died shortly after birth. The deceased and the father purchased the Excelsior Parade property in 1969. The only improvement at that stage was a small shed or outbuilding. They later borrowed money and built the three bedroom house that is now there. In 1973 or 1974, the father left the marriage and the family and went to live in Queensland. The evidence contains statements that the father was abusive towards his children. He denies this. Little, if anything, turns on this. It is clear, in any event, that the plaintiffs and their siblings experienced difficulties of various kinds in childhood. Brian and Raylene are illiterate, as the deceased was. Ian can read only to a limited extent and with difficulty. All the plaintiffs attended school but left at young ages. Each lived in the Excelsior Parade property until going to live elsewhere as a young adult (Belinda ran away from home at age 16, continued her schooling, eventually married and is now a bank officer).

12 Raylene is the deceased’s eldest child. She was born on 9 June 1957. Her mother, the deceased, was ill when she was young. Raylene says that, because she was the eldest child, most of the burden of housework fell upon her. She left school in 1971 before reaching the minimum leaving age and, according to evidence, worked for about three months in a factory where she was exposed to herbs and spices to which she says she was allergic. Melva denies that Raylene ever worked at the factory. Raylene had worked in a bakery at weekends and on afternoons from the age of about nine, but Melva says she never received money, only cakes and bread. Raylene married at age 18. The evidence does not refer to her having been employed thereafter, except sporadically. She refers to her illiteracy as a barrier to obtaining employment. Raylene and her husband had four children, born in 1976, 1977, 1978 and 1984. The marriage was dissolved in 1992.

13 Raylene and her husband owned a house at Marks Point. This passed to the husband alone under a property settlement. Raylene says that, because of her illiteracy, she did not understand the property settlement and its implications.

14 For about the last fifteen years, Raylene has lived in a house at Speers Point owned by David Peter Crawford who also lives there. She pays rent and describes herself as a boarder. The defendants sought to show that Raylene is in a de facto relationship with Mr Crawford. They relied on evidence of Mr Davies as to what he saw at the house when he visited in 2000, evidence in general terms given by Mr Crawford’s mother and evidence of Ms Burgess, a cousin of the plaintiffs, Melva and Belinda, that Mr Crawford was introduced to her in 1999 as Raylene’s fiancé.

15 Particularly in light of Mr Crawford’s evidence – which I considered frank and reliable – I am satisfied that there is no de facto relationship between him and Raylene and that, as they both say, she is no more than a boarder who lives in his house, pays rent and bears certain of the household expenses. Mr Crawford says in his affidavit that he suffers from obsessive-compulsive disorder (an anxiety disorder which typically involves rituals) and body dysmorphic disorder (a condition involving excessive dissatisfaction with one’s body). As a result, he says, he has difficulty in developing and maintaining relationships. He says he cannot have a close personal relationship with anyone, particularly an intimate relationship with a woman. Raylene says that she has not been interested in pursuing an intimate relationship since the end of her marriage, citing on-going psychological problems she attributes to sexual abuse in childhood. I accept that the inhibiting factors to which both of them refer have precluded any relationship beyond that of landlord and boarder, plus some social interaction. They are friends and people treat them accordingly.

16 Raylene’s eldest child, Robyn, is married and has two young children. According to Raylene, Robyn suffers periodic blackouts as a result of a fall from monkey-bars as a child. This condition, according to Raylene, makes Robyn unable to care adequately for her children, with the result that they spend most of their time with Raylene at Mr Crawford’s house, visiting their parents’ home regularly. Mr Crawford confirmed that the two grandchildren live with Raylene, but says that the arrangement stemmed from Robyn’s lack of confidence as a young mother and the fact that the older child bonded with Raylene after spending considerable time with her. I accept that Raylene, for whatever reason, is the main carer for her two grandchildren. Both of them have medical conditions. The boy has had sleep apnoea since birth. The girl has a turned foot.

17 Raylene is attending literacy and numeracy classes. She receives counselling at a private clinic for which she pays $50 per session.

18 Raylene’s only income is from Centrelink benefits. She receives $500 per fortnight, including $95 rent assistance. She pays $95 to Mr Crawford. She receives no financial support for the two grandchildren, although the children’s parents do provide assistance sometimes. Why they do not provide fully for their children is not clear. Raylene receives occasional help from charities, mainly with the payment of electricity bills (her arrangement with Mr Crawford is that she pays for the electricity).

19 Raylene has no assets of any consequence. She hires a fridge, freezer, washing machine, television and DVD player. These cost her $137 per fortnight. She spends about $25 per week on bills and $60 per week on groceries. She also pays her son $5 per week for the use of a car owned by him. She has an arrangement with him that when she has paid off its value of about $8,000, he will transfer the car to her. She still has an estimated $6,000 to pay under that arrangement (which, at the rate of $5 per week, will take some 24 years to complete).

20 Raylene was, at the time of the hearing, an undischarged bankrupt. She has had two bankruptcies, one commencing in 2001 and the other in 2003. In each bankruptcy, she was described by several different names, including “Kate Mar” which is now her preferred name because her former husband does not want her to use the name “Morris” and she does not wish to use her father’s name “Burke”.

21 Brian (also known as Joey) is the second child of the deceased. He was born on 10 September 1958 and has a mild intellectual handicap. He left school in 1974 at age 15 without having learned to read or write. He had casual jobs after leaving school and in 1978 started work at the BHP steelworks. A few months later, he was a passenger in a car which rolled over. He suffered back injuries. A cousin, also a passenger, was killed. Brian returned to work at BHP after the accident but, some 8 to 12 months later, he had to give up that work because of back pain that he attributes to the car accident. Thereafter, he did casual work for a demolisher and at Access Industries and The House With No Steps. He was by that time on social security benefits by way of either sickness benefit or disability support pension. He has been on unemployment benefits at various times before the accident. His back problems persist to this day.

22 Brian married on 12 September 1981. He and his wife had two children who are now aged about 23 and 21 years. In the course of the marriage (which lasted about nine years), Brian and his wife lived successively in Department of Housing accommodation, with the wife’s aunt, in a rented house and with the wife’s grandmother. Some time after separating from his wife, Brian went to live in Department of Housing accommodation at Gosford with Alison Veech. He remained there for about seven and a half years. After the relationship ended, he boarded with a friend in Sydney for about two years, then went to Maitland and lived with a woman with whom he had formed a relationship. For the last four years, he has lived in a Department of Housing flat at Speers Point. Correspondence in evidence suggests that the department may soon provide substitute accommodation.

23 Brian is currently in receipt of a disability pension of $488.00 per fortnight. He has deposed to fortnightly outgoings and expenses of $494.00. He owns no real property and no longer owns a motor vehicle. He did own a car for which he borrowed money from a credit union. The car “blew up” in about 1999 and he sold it to a wrecker for $200.00. He is still paying off the loan. He has no savings. He hires a fridge, stereo and washing machine. He has little furniture and sits on his bed to watch television and eat meals.

24 I turn now to Spencer’s circumstances. Spencer left school at about 15, that is, in about 1975. He had jobs soon after leaving school, initially at Toronto Spares. Beyond that, there is no evidence of any employment history. He is now unemployed and it appears that he has been unemployed for a long time.

25 Spencer has never married. He has five children from three different mothers. Two of the children (Jackie aged 16 and Reece aged 8) live with him all the time. Maddison (aged 4) lives with him for half of every week. The eldest, Jessie, is 23. The other child, James, is also aged 16. Spencer lives in rented accommodation at Buttaba. There is some conflict in the evidence as to whether Spencer owns a 16 year old Ford Falcon car or whether it is owned by Tracy Sault, the mother of some of the children. In the end, I do not think it necessary to pursue the ownership question as the value of such a car must be very small. He says he owns a 1991 Ford Fiesta valued at approximately $2,000. He also owns a fibreglass boat and trailer which he appears to have purchased in May 2005 (perhaps with the Ford Falcon) for a total of $1,100, there being in evidence a receipt for that amount from one E. Bunter referring to these items.

26 Spencer receives a sole parent’s pension from Centrelink. He receives up to $480.00 per week but I gather from his evidence that in some weeks it is less. He lists his weekly expenses as $165.00 for rent, $10.00 for school fees, $100.00 for groceries, $80.00 for a City Finance Loan, $19.00 for a social security loan, $72.00 for clothes and petrol and $40.00 for bills. There is about $1,600.00 owing on the City Finance loan. The evidence does not refer to the amount of the social security loan.

27 Ian is the youngest of the six surviving children of the deceased. He was born on 6 June 1967. He had sight problems as a child and did not do well at school. He has never become fluent at reading and writing. He finished school in 1982 and was awarded a School Certificate with a ranking near the bottom of his year. He got various casual jobs after finishing school and, about a year later, went to Gunnedah where he worked in the meatworks.

28 Ian returned from Gunnedah in late 1987 and went back to live with his mother. By that time, Melva, her husband Neale and their children were also living in the Excelsior Parade house. Ian obtained some work but was sometimes on social security benefits. Ian remained in the home until early 1996. He married his wife, Karen, in May of that year. He had gone to live at Karen’s rented house some time beforehand.

29 Ian and Karen have two children, Brandon aged 9 and Jacinta aged 5. Brandon has severe asthma, a behaviour disorder and a concentration disorder. Jacinta has been diagnosed with lead poisoning which is thought to have produced some intellectual impairment. A disabled child’s allowance is paid in respect of Jacinta.

30 Ian was out of work when his mother died in January 2003. He remained unemployed until September 2005 when he started as a casual bus driver with Toronto Bus Service. Karen is not employed but does voluntary work at Jacinta’s school. Ian is currently living apart from Karen and their children. He stays with his brother Brian, although visiting his family regularly and often and sometimes staying overnight.

31 Ian’s income from the bus company is about $500 net per week. Karen receives Centrelink benefits, including a component that takes account of the fact that her husband is not living with her. Her present income from that source consists of a parenting allowance of $496.00 per fortnight, a carer’s allowance of $185.00 per fortnight and a family tax benefit of $346.00 per fortnight.

32 Karen and the children live in Department of Housing accommodation. Ian and Karen own the household furniture. They also own a 1986 Suzuki Hatch car. Ian became a bankrupt in April 2000 by virtue of the presentation of a debtor’s petition, disclosed debts being of the order of $23,000. He was discharged by operation of law in April 2003.

33 I consider next, for the purposes of comparison and relativity, the position of Melva, the devisee of the Excelsior Parade house. She has lived in the property since she was a small girl. She left school early to look after the family. That was in mid-1975 when she was aged 14 years and 10 months. Her first child, Neale, was born in 1977. Her second child, Lee, was born in 1982. Her third child, Crystal, was born in 1983. The father of the children is Neale Powell. He and Melva married in 1986. Before the marriage, Melva lived continuously with her mother at the Excelsior Parade property. Neale, her husband, moved in there after the marriage in 1986. Melva worked for a while in the relatively short period between leaving school and her first pregnancy. She did not work again until some time after the birth of the third child. She has had various casual jobs and is currently employed part-time as a cleaner at a club. She also does washing and ironing for the priest at the local Catholic Church.

34 Melva’s husband Neale was a member of the regular army. He had six years service and was discharged in 1980 with the rank of lance-corporal. After leaving the army he worked at BHP as an instrument fitter. He is no longer able to work, although he does some voluntary work at the local church. He suffered a heart attack in 1988 and is now affected by a myriad of illnesses which, according to his affidavit, include severe asthma, osteoporosis, cataracts, kidney stones, strictures of the bladder, diabetes, heart problems, severe sinusitis, allergies and gastric reflux. He is treated by a general practitioner and seven medical specialists. He says that he developed breathing problems after spending six weeks at the asbestos mine at Wittenoom in the course of his army service. A claim for compensation for this against the Department of Veterans Affairs was unsuccessful.

35 Neale is in receipt of a disability pension and a part pension from Veterans Affairs. Melva has earnings from her cleaning job. In some weeks she receives $200 net, in others she receives less. She also receives Centrelink support of about $180.00 per week and $50.00 per week for the help she gives the parish priest. Melva and Neale own a motor vehicle which they bought second hand and furniture and effects and have about $1,400.00 in savings accounts. Otherwise, they have nothing. Both became bankrupts in 1997 but have now been discharged. They have a loan on which they owe about $17,000. Their weekly expenses are about $700.00, including loan repayment.

36 Melva and Neale maintain that they paid off the deceased’s mortgage of some $15,000.00 on the Excelsior Parade property. They also say that they paid or helped pay rates and other outgoings. No direct and independent evidence of these matters is available, although it is pertinent to quote clauses 3 and 8 of the deceased’s will:

“3. Due to the love and assistance shown to me by my daughter MELVA MAREE POWELL, who has continued to support me and assist me with the purchase of the property at 22 Excelsior Parade, Carey Bay, after my husband left me, and due to the fact that I have not received any assistance from my other children and also the continued support and help received from my daughter MELVA who resides with me I GIVE my house situate at 22 Excelsior Parade, Carey Bay unto my daughter absolutely provided she survives me by a period of thirty days, but not otherwise.”
“8. THIS WILL is further made in anticipation of the fact that one or more of my children may attempt to contest the Will. I have this in mind when I state that I am leaving it to my daughter MELVA, due to the sacrifices she has made on my behalf during the period following the separation of myself and my husband in helping me to provide a home for the family and I feel that those of my children that have remained at home have been provided for in that they have been allowed to continue to reside in the home, notwithstanding that they have paid their board during the period they have resided with me.”

37 I must in the light of this, accept that, in 1987, the deceased regarded Melva as having assisted her with the purchase of the property and having helped in other ways, she being the only child who remained at home with the deceased throughout. Against that, it must be recognised that Melva and Neale paid no board or rent and that not only Melva but, successively, her three children and her husband obtained free accommodation from the deceased at a stage of life when the plaintiffs had left home and were fending for themselves without help from their mother, except for small gifts of money made by her from time to time.

38 I turn to the nature of the relationship between each plaintiff and the deceased. I received a quantity of evidence about bad feelings and animosities among the six siblings, some of it going back to childhood. Each had a hard upbringing, mostly in circumstances where a single mother struggled financially. The evidence suggests that some of the children were very unruly and that, in some cases, violent behaviour continued into adulthood. There were jealousies and disputes among the children. There was also something of a competition for the deceased’s maternal affection, not only in childhood but also into adulthood. Each plaintiff was at pains to give evidence about acts of kindness and generosity by him or her to the deceased, as was Melva. And each sought to show one or more of the others as unkind or callous towards the mother.

39 I do not intend to go into all that evidence in any detail. It is sufficient to say that no one disagreed with the proposition that the deceased loved all her children and did what she could to maintain relationships with them and to help them with such gifts of money as she could afford when they were in need (the exception is Belinda who, from age 16, lived largely independently of the other family members, although she is now in touch with Melva and gave evidence in the defendants’ case).

40 I am also satisfied that the plaintiffs and Melva loved their mother and, while some of them did not see her often, had a reasonable relationship with her. All lived in the Lake Macquarie area and were readily accessible to one another in time of need. Evidence of spiteful or callous things said by one or other of the children about the mother seem to me to have been no more than missiles in the on-going hostilities among the children.

41 The first stage of the Singer v Berghouse inquiry justifies, in my view, a finding that what is effectively zero was not the proper level of maintenance or advancement in life of each plaintiff. All of them lived, for a considerable time before the deceased’s death, in circumstances so modest as to verge on destitution, with all dependent on social security support for even the basic essentials of life and with bankruptcy a fact of life in two cases. And Melva was in essentially the same position.

42 I move therefore to the inquiry as to the provision that should be made for each plaintiff, at the same time balancing that against the provision that should be made for Melva, with the inquiry focussed upon the circumstances as they now exist and the expectations I perceive to be indicated by prevailing community standards of what is right and appropriate.

43 There can be no doubt that Melva has a claim on the deceased’s bounty and that there is a legitimate expectation on her part accordingly. It was she who engendered in the deceased the feelings expressed in clauses 3 and 8 of the will set out above. Those feelings had a rational basis in that Melva had continued to live with the deceased and was her carer, added to which I am, as I have said, satisfied that Melva did assist the deceased financially with the purchase of the Excelsior Parade property. The deceased’s testamentary intentions were, in effect, that Melva’s claim should be recognised by the specific gift of that property – but also that the other children, along with Melva, should share the remainder of her estate. In the events that happened, of course, the second aspect of the testamentary intentions has been frustrated by the absence of residue.

44 While Melva has the well-founded expectation to which I have referred, the deceased’s frustrated intention to benefit her other children cannot be overlooked, having regard to the community standards the court is called upon to apply. Each plaintiff has a clearly demonstrated financial need as, indeed, does Melva. While each plaintiff refers in evidence to some particular physical item needed, the reality is that each has virtually no assets, no (or little) income producing capacity and little, if any, prospects of acquiring even a basic level of financial well-being such as would avoid permanent reliance on social welfare and a way of life that involves resort to a debtor’s petition in bankruptcy whenever financial stress arising from small debts becomes intolerable.

45 For reasons I have already mentioned, the Excelsior Parade property will have to be sold. The deceased’s wish that Melva should have the house has been overtaken by circumstances. That being so, the clearly demonstrated financial needs of the plaintiffs should be recognised by orders that give them part of the estate.

46 While the prevailing theme of poverty or near poverty applies to each plaintiff, there are some differences among them as regards need. Spencer and Ian have dependent children. Ian also has a wife who lives solely on Centrelink benefits. Spencer’s circumstances involve his being the primary carer of two apparently healthy children, aged 16 and 8. Ian and his wife have responsibility for two children aged 9 and 5 both of whom have health problems.

47 The evidence given by and on behalf of Raylene portrays her as the primary carer for her two young grandchildren, each of whom has health problems. Not satisfactorily explained, however, is the role of the grandchildren’s parents (Raylene’s daughter Robyn and Robyn’s husband). The evidence shows Robyn’s husband to be a tradesman boilermaker in steady and regular employment. There were several references to his working extra shifts at night and at weekends. There is no direct evidence of the financial situation of Robyn and her husband, but the matters I have mentioned justify an inference they, like the general run of married couples with the husband in regular work as a skilled tradesman, have the capacity to provide financially for their two children, even if those children live most of the time with their grandmother.

48 Brian is a single person with no dependants. For reasons given in the preceding paragraph (and having regard to my earlier findings about Raylene and Mr Crawford), Raylene must also be regarded as a single person without dependants.

49 The question of appropriate provision must therefore be addressed on the basis, first, that each plaintiff has negligible assets; second, that with the exception of Ian, all have been unemployed for a long time and have no prospect of finding employment; third, that Ian’s employment prospects are extremely limited; fourth, that no plaintiff has any realistic prospect of support except through social welfare; fifth, that each of Brian and Raylene is a single person without dependants; sixth, that Spencer is a single parent with two apparently healthy dependent children; and, seventh, that Ian is a married man with two younger dependent children with special health care needs. These factors mean, in my judgment, that the relativities, from a needs perspective, are such that Raylene and Brian stand on an equal footing; that Spencer warrants treatment at a somewhat higher level; and that Ian warrants treatment at a somewhat higher level again.

50 Mrs Bridger of counsel, who appeared for the plaintiffs, submitted that a legacy in the amount of $30,000 should be awarded to each of them. The problem with that (apart from the fact that it does not differentiate among the plaintiffs according to the factors I have mentioned) is the impact of costs which is unknown except to the extent of the defendants’ costs estimated at $71,000.00 which ought to be paid out of the estate on the indemnity basis. Because there will be an order for provision in favour of each plaintiff, it may be expected, on general principles, that there will also be an order that the plaintiffs’ costs on the party and party basis be paid out of the estate. That, however, is something on which the parties should be permitted to make submissions, if they wish to do so. The problem is that I have no way at this stage of estimating the full impact of costs.

51 My decision is that each plaintiff should be awarded a legacy out of the deceased’s estate. Because, as I have said, the impact of costs cannot at this stage be fully assessed, but recognising that the available resources are limited to the house the agreed value of which is $357,500.00, I propose to indicate a method of calculation to be applied after the net figure available (that is, after the full impact of costs) has been ascertained. The legacies for the plaintiffs will be as follows:

Raylene: The smaller of $15,000.00 and the sum which is four sixty-thirds of the net figure available.
Brian: The smaller of $15,000.00 and the sum which is four sixty-thirds of the net figure available.
Spencer: The smaller of $22,500.00 and the sum which is six sixty-thirds of the net figure available.
Ian: The smaller of $26,250.00 and the sum which is seven sixty-thirds of the net figure available.

52 The rationale applied in reaching this result is that the needs of the plaintiffs, differentiated according to the factors referred to at paragraph [49] above, should be accommodated by legacies of the fixed sums stated, but with those sums abating (so as not to impinge unduly on, and to maintain at a minimum level of two-thirds, the residuary interest of Melva) if the net figure available after the full impact of costs turns out to be less than approximately $236,000.00.

53 Subject to what I have said about the plaintiffs’ costs, the orders of the court will be to the following effect:

1. Order that the defendants’ costs of the several proceedings assessed on the indemnity basis be paid out of the estate of the deceased.
2. Order that the costs of the plaintiffs of each proceeding assessed on the party and party basis be paid out of the estate of the deceased.
3. Order that property in the estate of the deceased, being the house property at 22 Excelsior Parade, Carey Bay, be sold by the defendants in the same manner as if they were a mortgagee exercising power of sale and that the proceeds of sale be applied, first, in meeting the expenses of sale and any remaining debts and testamentary expenses and, second, in meeting the costs ordered to be paid out of the estate of the deceased, with the balance thereafter remaining being applied in paying legacies as follows:
(a) to Raylene Morris – the smaller of $15,000.00 and the sum which is four sixty-thirds of that balance;
(b) to Brian Joseph Burke – the smaller of $15,000.00 and the sum which is four sixty-thirds of that balance;
(c) to Spencer Burke – the smaller of $22,500.00 and the sum which is six sixty-thirds of that balance; and
(d) to Ian Wayne Burke – the smaller of $26,250.00 and the sum which is seven sixty-thirds of that balance
and with the residue of that balance being paid to Melva Maree Powell.

54 Before I pronounce formal orders, the parties and their advisers should have an opportunity to comment on the terms I propose – not (except for order 2) as to substance or merit, but from the perspective of any technical issues that might be thought to warrant attention (one of these being that there are, of course, three separate proceedings and there will be a need for orders to be made to dispose of each). Also, there should be opportunity for argument on the question whether the plaintiffs’ costs should be paid out of the estate, assuming that the defendants wish to agitate that question. I will leave it to the parties to approach my Associate about these matters. Of course, if the parties are able to agree a precise outcome in the light of the indications I have given, so much the better.

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