Barnett v McLeod

[2023] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

BARNETT v MCLEOD & ORS

[2023] SASC 128

Judgment of the Honourable Justice Stanley  

7 September 2023

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO CHILDREN

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - PRINCIPLES OF EXERCISE OF DISCRETION

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - TREATMENT OF PARTICULAR APPLICANTS - CHILDREN - ADULT CHILDREN GENERALLY

This is an application pursuant to the Inheritance (Family Provision) Act 1972 (SA). The applicant seeks further provision from the estate of the deceased.

The deceased, Denise Elizabeth Richards, was survived by her only child, the applicant, and her grandchildren, the third and fourth respondents. The deceased left a will dated 1 April 2020. Following relatively minor legacies, she provided for the applicant to receive a $30,000 legacy, and for the residue of the estate to be divided equally between the third and fourth respondents.

The estimated net position of the estate, after payment of legal fees and expenses and after payment of legacies exclusive of the applicant’s legacy is $1,217,762.08. The applicant owns no property, has superannuation and no other assets of significance. He earns income of $48,000 per annum (pre-tax), and his wife also earns an income of approximately $40,000 per annum (pre-tax). The applicant and his wife are entirely responsible for providing for the third and fourth respondents. There is no evidence of disentitling conduct.

The respondents accept that the applicant has been left without adequate provision for his proper maintenance, education and advancement in life, but contend that he does not point to dire or urgent financial need.

At issue is the discretionary question to decide what provision ought to be made for the applicant out of the deceased’s estate.

Held:

1. Pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), in lieu of the provision in sub clause 7.1 and schedule 3 of the deceased’s will for the gift and bequest of $30,000 to the applicant, the applicant is to receive the sum of $450,000.

2.      Provision of the additional sum of $420,000 is to be made from the residue of the deceased’s estate.

3.      The question of costs is reserved.

Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Bowyer v Wood (2007) 99 SASR 19; Brennan v Mansfield [2013] SASC 83; Campbell v Hemmings [2015] NSWSC 1592; Chapple v Wilcox [2014] NSWCA 392; Lemon v Mead (2017) 53 WAR 76; Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; McCosker v McCosker (1957) 97 CLR 566; Piper v Fraser & Ors [2020] SASC 239; Singer v Berghouse (1994) 181 CLR 201; Wenham v Wenham & Ors [2023] SASC 89; Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1, considered.

BARNETT v MCLEOD & ORS
[2023] SASC 128

STANLEY J:

Testamentary causes jurisdiction

Introduction

1. This is an application pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the Act).

2. The applicant seeks further provision from the estate of the deceased. 

3. The application proceeds upon a Statement of Agreed Facts.

4. They are:

   1.On 21 October 2021, Denise Elizabeth Richards late of 2 Cross Street, Mylor (the deceased) died.

   2.The deceased died a widower and was not married or in a registered relationship as at the date of her death.

   3.The deceased was survived by:

   a.     her only child, the applicant Benjamin Peter Barnett (Benjamin);

   b.      her grandchildren, namely:

   i.      the third respondent Kaiden James Barnett (Kaiden), who is 12 years of age, son of Benjamin; and

   ii.     the fourth respondent Darcy Kaylan Barnett (Darcy), who is nine years of age, son of Benjamin.

   4.The deceased left a will dated 1 April 2020 (the will).

   5.Relevantly, and following relatively minor legacies, the deceased distributed her estate as follows:

   a.     Benjamin is to receive a $30,000 legacy; and

   b.     the residue of the estate is to be divided equally between Kaiden and Darcy.

   6.The current value of undistributed legacies in the will is $27,500 exclusive of Benjamin’s legacy.  

   7.Benjamin does not seek to disturb the entitlements of the legatees. 

   8.The estimated net position of the estate, after payment of legal fees and expenses and after payment of legacies exclusive of Benjamin’s legacy is $1,217,762.08 

   9.Benjamin, his wife and his children were residing in a property with a friend in Mylor.  Benjamin secured a rental property in Bridgewater, which he and his family moved into on 24 April 2023. 

   10.Benjamin owns no property, has superannuation and no other assets of significance.  He earns income of $48,000 per annum (pre-tax) as a full-time Transport Officer at Crafers Garden Centre.

   11.Benjamin’s wife also earns income of approximately $40,000 per annum (pre-tax).

   12.The current financial circumstances of Benjamin are:

   a.     Assets

   i.      2011 Kia Sorrento vehicle - $8,000;

   ii.     Commonwealth Bank account, owned jointly with Benjamin’s wife – with a balance of $30;

   iii.     Superannuation with an estimated balance of $85,000.

   b.     Liabilities

   i.      loan with Latitude Finance over the motor vehicle - $3,500;

   ii.     credit card, owned jointly with Benjamin’s wife - $3,500;

   iii.     personal loans from Benjamin’s father-in-law - $5,000; and

   iv     personal loan from a friend - $5,000.

   c.     Living expenses

   i.      rent for the property at Bridgewater - $640 per week;

   ii.     credit card repayments - $80 per fortnight;

   iii.     motor vehicle repayments - $100 per week;

   iv     car insurance - $115 per month;

   v.     utilities – approximately $1100 per quarter;

   vi.     groceries – approximately $350 per week;

   vii.    medical expenses – approximately $80 per month; and

   viii.  clothing and other sundries – approximately $500 per quarter.

   13.Benjamin and his wife are entirely responsible for providing for Kaiden and Darcy. 

   14.According to realestate.com.au as at 17 May 2023 the following represent the median house prices for a three-bedroom property:

   a.     in Bridgewater:  $676,382;

   b.     in the four surrounding suburbs of Bridgewater namely, Nairne, Balhannah, Mount Barker and Meadows:        $610,375;

   c.     in the four nearby suburbs or towns of Bridgewater namely, Murray Bridge, Strathalbyn, Lobethal and Woodside   $500,250; and

   d.     in the five nearby towns namely Mannum, Tailem Bend, Goolwa, Victor Harbor and McLaren Vale:  $477,500.

   16.The median house price for 3-bedroom property in all locations outlined above is $566,126.75.

   17.There is no evidence of disentitling conduct.  Benjamin considers that he enjoyed a “normal and loving mother/son relationship” with the deceased.

5. Benjamin submits that he satisfies the so-called jurisdictional question in that he has been left without adequate provision for his proper maintenance, education and advancement in life.  The respondents accept that submission.  In support of jurisdiction Benjamin contends that:

   a.he is the only child of the deceased and is 48 years of age;

   b.he is in financial need and does not own any accommodation;

   c.the majority of his income is used to pay rent;

   d.he has two dependent children;

   e.the estate available for distribution is $1.217 million;

   f.his legacy under the will is equivalent to approximately 2.4 per cent of the estate available for distribution;

   g.there are limited competing claims on the bounty of the testator (such claims being limited to his children who are remoter issue of the deceased);

   h.there is no conduct disentitling him from further provision.

6. The respondents agree the above facts but contend that Benjamin does not point to dire or urgent financial need: for example, debt unserviceable or otherwise, imminent medical expenses, or other concrete threats to his financial stability.  Benjamin’s wife also earns an income in support of the family.

7. At issue is the discretionary question to decide what provision ought to be made for Benjamin out of the deceased’s estate.[1]

   [1]       Singer v Berghouse[1994] HCA 40, (1994) 181 CLR 201, 208.

8. Benjamin submits that adequate provision would be a legacy equivalent to at least 50 per cent of the net estate available for distribution plus his costs on the standard-cost basis.  This would allow him to purchase suitable and permanent accommodation for himself and his family, pay associated duties and, thereafter, utilise a greater portion of the family income to provide for his family and build a nest egg for contingencies. 

   Relevant law

9. Applications for provision are fact and case specific. 

10. The task of the Court when answering the discretionary question is to ask itself what is adequate and proper provision in all of the circumstances?

11. “Adequate” and “proper” are distinct but related concepts. 

12. In Piper v Fraser & Ors,[2] Peek J referred with approval to Buss P’s analysis in Lemon v Mead of the authorities on the construction of adequate and proper.[3]  Effectively, there are no fixed rules to be applied and each case turns on its own facts.  What is adequate on the one hand may not be proper; what is proper on the other may not be adequate.[4]  Of particular importance is the size and nature of the estate.

    “Adequate” is concerned with the quantum, whereas “proper” prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.[5]

    [2]        [2020] SASC 239.

    [3]        (2017) 53 WAR 76, 94-96.

    [4]        Lemon v Mead (2017) 53 WAR 76, 94.

    [5]        Lemon v Mead (2017) 53 WAR 76, 95.

13. “Need” has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources.[6]

    [6]        Singer v Berghouse [1994] HCA 40, (1994) 181 CLR 201, 227.

14. In Bowyer v Wood,[7] Debelle J said:

    It is well established that the word “proper” is not intended to give the court power to rewrite the will in accordance with its own ideas of justice and fairness. Instead, the use of the word “proper” is intended to require the adequacy of the provision which has been made to be determined by reference to all relevant circumstances including the size of the estate:WorladgevDoddridge per Kitto J who added, relying on Bosch v Perpetual Trustee Co Ltd:

    In Bosch's case the Privy Council corrected this misconception by insisting that proper maintenance is not to be translated as adequate maintenance, and that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of his case is necessarily a judgment as to what maintenance the applicant ought to have in those circumstances, and not what he or she needs.  It is only in that sense that it is correct to say that Bosch's case adopted an “ethical” rather than an “economic” view.  The hypothesis of a just but not loving testator is resorted to, not for the purpose of determining what would have been the ideally fair manner of disposing of the testator's estate, but only for the purpose of determining what was sufficient for the maintenance and support which the circumstances make it right that the applicant should have, as distinguished from what was sufficient for the maintenance and support which the applicant may be considered to need.

    [Citations omitted.]

    [7] [2007] SASC 327 at [41], (2007) 99 SASR 19, 202-203.

15. “Proper” was construed by the High Court in McCosker v McCosker as follows:[8]

    ... As the Privy Council said in Bosch v Perpetual Trustee Co. (Ltd) the word "proper" in this collocation of words is of considerable importance. It means "proper" in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune.

    [Citations omitted.]

    [8] (1957) 97 CLR 566 at 571 – 572.

16. In Chapple v Wilcox,[9] the New South Wales Court of Appeal observed that:

    Referring to the judgment of Sheller JA in Permanent Trustee Co Ltd v Fraser, Allsop P noted that the appropriate order should be made by reference to “perceived prevailing community standards of what is right and appropriate”. He acknowledged that this was an imprecise, variable and contestable standard…

    [Citations omitted.]

    [9]        [2014] NSWCA 392 at [12].

17. While each case necessarily turns on its own facts, the Supreme Court of New South Wales faced a similar factual matrix in Campbell v Hemmings.[10]  In that case:

    a.     The estate comprised a house, subject to a right of residence, valued at $235,000 and approximately $550,000 in other assets (combined total $785,000 but subject to the right of residence);

    b.     The testator was survived by a partner, single child and two great- grandchildren.  The partner received the right of residence in an estate property until one of two minors turned 18.  The great-grandchildren received most of the estate.  The child received nothing.

    c.     Ultimately, Benjamin child was awarded $350,000.  This enabled Benjamin to purchase a suitable property.

    [10] [2015] NSWSC 1592.

    Joint Contentions 

18. Benjamin is a person in financial need.  The respondents accept that he has financial needs but contend that there is no evidence of financial distress.  Benjamin does not own property, he and his wife each earn a modest income; he has two dependent children and almost no buffer to meet the contingencies in life.  There is no conduct disentitling him from provision or conduct that would reduce any provision he may be awarded.  Each of those matters is accepted by the respondents.

19. Pursuant to the median calculation of recent house sales in the Statement of Agreed Facts at paragraph 15, the estate is of a sufficient size to allow Benjamin the purchase of suitable accommodation while still providing a trust fund to each of Kaiden and Darcy when they reach maturity.  Such provision to Benjamin would directly improve the quality of life of Kaiden and Darcy in that they would have permanent accommodation and their parents would have access to a larger portion of their income for life’s contingencies.

20. At issue is the exercise of the Court’s discretion.  In undertaking that exercise, the Court steps into the shoes of a wise and just testator with constructive knowledge of all relevant facts and likely contingencies.  Benjamin contends that the Court’s knowledge would include, inter alia:

    (i)     Benjamin resided with his mother until he was 30 years old;

    (ii)    Benjamin enjoyed a ‘normal’ mother-son relationship with his mother;

    (iii)   he is a person in financial need;

    (iv)   he is unable (and will be unable in the future) to satisfy his financial requirements from his own resources;

    (v)    he is unable to purchase a home for his family and will, without sufficient provision to purchase a suitable property, need to rent accommodation for the rest of his life;

    (vi)   the income of Benjamin and his wife is close to breaking even with regular expenses (particularly rent). With little or no excess funds, it is unlikely Benjamin’s wealth will grow significantly before his retirement in 20 years. Once Benjamin and his wife are forced to retire, they will be wholly reliant upon the aged pension and own no property.

21. The respondents accept the matters at (i) to (iii) above.  As to (iv), (v) and (vi) the respondents contend that Benjamin has not proved he is impoverished or in financial distress or urgent financial demands.  The respondents accept that, like every other person, Benjamin is subject to the vicissitudes of life.  The respondents do not otherwise accept his future is as bleak as he paints. 

22. Benjamin contends that the competing claim of the minor respondents should be considered subordinate to his claim.  The respondents resist the contention that there is any principle of subordination operative but submit that the Court is required to balance the relative interests as a just and wise testator would on the available facts.

23. Benjamin contends that prevailing community standards support his position. The respondents submit that it is a question of degree.  

    Benjamin’s contentions

24. Benjamin submits that in circumstances where a testator is survived by one child and grandchildren, the community would expect that the testator owes the greatest duty to provide for her child.  While, as a general rule, the community would not expect a parent to provide freehold property to an adult child, the facts and circumstances of this case justify that outcome.  This is particularly the case where, as here, that child is in financial need and has two dependent children who rely upon him.  Conversely, the minor grandchildren have no specific need; their needs are met currently vis-à-vis their dependent relationship with their parents.  Benjamin acknowledges that the Court must protect the interests of those who cannot protect it themselves. 

25. Discretion is at large.  The estate available for distribution is of a reasonable quantum.  Based on Benjamin’s financial need and circumstances, adequate provision would allow him to purchase a freehold house that is suitable for his family and would also afford him a nest egg for contingencies.  Given current housing prices in South Australia and the practical housing needs of Benjamin and his family, it is not possible for the estate to provide adequate funds for him to purchase a home and provide a nest egg.  He acknowledges that making such provision would not be proper because it would exhaust the estate and not accommodate the competing claims of the minor respondents.  This dispute is over what is proper in all of the circumstances. 

26. Benjamin submits that a legacy equivalent to 50 per cent of the net estate would be proper in the circumstances and reflect prevailing community expectations. That is, the parties would have secure accommodation, Benjamin could use a greater share of his income to build a nest egg for contingencies, and Kaiden and Darcy would receive a pool of funds to be held on trust for them.  He acknowledges the competing claims of Kaiden and Darcy but submits that the testator’s primary moral duty is to provide for her only child.  Providing the balance of the estate to each of Kaiden and Darcy recognises the balancing act between provision claims and testamentary freedom; the competing claims of Kaiden and Darcy and Kaiden and Darcy’s uncrystallised future needs. 

    The respondents’ contentions

27. It is now well settled that in assessing the appropriate provision for each potential beneficiary, it is the totality of the circumstances of all of the beneficiaries and the relevant relationship between the beneficiaries and the deceased that should be considered by the Court.[11]

    [11]      Singer v Berghouse [1994] HCA 40, (1994) 181 CLR 201.

1. In that regard, some respect will be paid to the testator’s intentions objectively construed.  It is apparent from the will that it was the deceased's intention to see the majority of her estate bequeathed to support the economic future of her only grandchildren as they reach their majority.  There is no dispute that the deceased had a close and loving relationship with her grandchildren.  Provision should be made consistent with that intention. 

2. It is also accepted that proper provision in favour of Benjamin is appropriate in this case.  While he does not point to declining health, debt or other matters of immediate economic need, it is clear on the authorities that relative to the size of the estate a disposition of only $30,000 leaves him without adequate and proper provision.  While living within his means, Benjamin is not asset rich or affluent.

3. The central question is the competing claim between a father and his young children.  Any increase in the provision set aside for Benjamin represents a corresponding decrease in the inheritance available for his sons when they turn 18; noting, of course, that the quantum of Kaiden’s and Darcy’s inheritance is likely to increase with prudent investment by the trustee.

4. The respondents submit that Benjamin’s argument that the value of his children’s competing claims is subordinate to the moral duty owed to him by the deceased cannot be wholly accepted.  That submission is not supported by what is said to be his corresponding but unenforceable, moral duty to care for and financially provide for his children.

5. The respondents submit Benjamin’s case rests almost entirely on community standards and does not point to facts which suggest that, in the absence of very significant further provision, his family confronts urgent or pending economic demands.  While not affluent the family is in a position shared by many Australian families.  The respondents contend that there are, accordingly, few features presented on Benjamin’s case which favour very serious or unusual interference with the deceased’s testamentary intentions.  

6. The issue is where the line ought to be drawn between providing a substantial inheritance to Kaiden and Darcy, as was intended by the deceased, while sufficiently accounting for the fact that a wise and just testator would have allowed for a greater degree of financial security for her only son.

7. A court neither can nor will re-write a will by its own notions of fairness.[12]  While each decision turns on its peculiar facts there is an expectation of parity with decisions in like circumstances.  So much is axiomatic for any statutory discretion exercised judicially.  A comparative review of the recent authorities in South Australia which have decided claims by adult children provides one metric.  

   [12]      Worladge & Anor v Doddridge & Ors [1957] HCA 45, (1957) 97 CLR 1.

8. The respondents submit there is little on the facts presented by Benjamin that would justify the award of 50 per cent provision sought in these proceedings.  What marks out this matter is the lack of distinguishing factual features separating Benjamin’s claim from the Court’s recent historical approach to cases involving the claims of adult children.  The respondent submits that an award in the range of 25 per cent of the estate, approximately $300,000, would be congruent with previous exercises of the Court’s discretion in cases concerning adult children.  In the circumstances it would constitute proper provision for Benjamin. 

9. As Benjamin concedes, he has no legal expectation of a freehold property.  The respondents contend that it can be inferred from the Statement of Agreed Facts that an award in the range submitted by the respondents to be appropriate would be sufficient to provide him with the means to acquire a property under mortgage allowing a larger trust fund to grow for the benefit of his children upon the attainment of their majority.  There is nothing in the Statement of Agreed Facts which suggests that Benjamin, who meets an on-going rent liability, would be unable to service a mortgage on a property of about $500,000, as contemplated by Benjamin, in which he will have equity of $300,000.  The respondents submit that the benefit to Benjamin’s children lies in having a place to live and the maximum funds available to them as they attain their majority.  It is incorrect to submit that they have no current financial needs.  In addition, Kaiden’s and Darcy’s future needs are clearly relevant.  A mortgage might achieve that benefit for Benjamin’s children as effectively as the purchase of a property by their father.

   Benjamin’s reply to the respondents’ contentions

10. Benjamin relies on the recent case of Wenham v Wenham & Ors.[13] Kimber J considered the situation where three adult sons shared the estate of their late father equally under the will.  The net estate available for distribution was, approximately, $1.28 million.  Benjamin owned a house with a mortgage, a number of valuable vehicles, had superannuation at the date of death of over $250,000 and had no dependents.  Benjamin applied for further provision on the basis that his respondent-siblings were in a more secure financial position.  Whilst the matter was ultimately dismissed on Benjamin’s failure to satisfy the jurisdictional question, his Honour considered the matter to be “finely balanced”,[14] despite Benjamin receiving one third of the net estate under the will.  The applicant is Wenham was in a more secure financial situation than Benjamin.    

    [13] [2023] SASC 89.

    [14]      Wenham v Wenham & Ors [2023] SASC 89 at [27].

11. In this case Benjamin agrees that it is in the interests of the minor respondents to have a secure place to live.  However, he submits that there is nothing in the Statement of Agreed Facts that should lead to a finding that Benjamin could secure a mortgage to assist in the purchase of suitable accommodation for himself and his family.  The Statement of Agreed Facts discloses that Benjamin and his wife have an annual gross income of $84,000, their income and expenditure is finely balanced, and they have two children who are dependent upon them.  In the circumstances, an inference can be drawn that it is unlikely that he would be able to secure finance to assist in the purchase of a home. 

    Consideration

12. The exercise to be undertaken by the Court requires it to carry out what has been described as a two-stage process.  The first stage calls for a determination of whether Benjamin has been left without adequate provision for his proper maintenance, education and advancement in life.  The second stage, which only arises if that determination be made in his favour, requires the Court to decide what provision ought to be made out of the deceased’s estate for Benjamin’s benefit.  The first stage has been described as the ‘jurisdictional question’.[15]

    [15]      Singer v Berghouse [1994] HCA 40, (1994) 181 CLR 201, 208-209.

13. In this case there is no issue in relation to the first stage, namely, the jurisdictional question.  What is at issue is what provision ought to be made out of the deceased’s estate for Benjamin.  That involves the exercise of an evaluative as much as a discretionary judgment.[16] 

    [16]      Singer v Berghouse [1994] HCA 40, (1994) 181 CLR 201, 210-211.

14. I accept the respondents’ submission that there is no evidence that Benjamin is in financial distress.  However, that is not the test.  Rather the question is, the Court having found that he has been left without adequate provision, what provision ought to be made out of the deceased’s estate for him.

15. In Lloyd-Williams v Mayfield[17] Bryson JA, with whom Giles JA and Stein AJA agreed, observed that financial need is usually prominent in family provision cases due to the limited scale of resources available.  However, financial need should not be considered an underlying legal limit on provision.  In Lloyd-Williams v Mayfield the lack of any hardship suffered by the beneficiary of the estate allowed the focus to shift to provision for future needs such as, inter alia, housing, rather than on existing financial needs.  In this case I am satisfied that there is an existing need to make provision for adequate housing. 

    [17] [2005] NSWCA 189, (2005) 63 NSWLR 1.

16. In my view proper and adequate provision should be enough for Benjamin to have the reasonable means of providing a secure residence for his wife and their children.[18]  In that way not only is the deceased’s moral obligation to him satisfied but so are the interests of both of the children who will not come into their inheritance until they attain the age of eighteen.  Kaiden is twelve years of age.  Darcy is nine years of age.  The provision to Benjamin of a sufficient sum to enable him to purchase a house will provide his children with the stability of a settled home through their teenage years.  Absent provision from the deceased’s will of such a legacy, Kaiden and Darcy would be denied that benefit.  Their parents plainly lack the financial capacity to do so without additional provision being made in favour of Benjamin from the deceased’s will. 

    [18]      Brennan v Mansfield [2013] SASC 83 at [65].

17. The question is what amount is required to achieve that moral obligation.  In my view it is not necessary that sufficient provision be made out of the deceased’s estate to enable Benjamin to purchase a suitable residential property unencumbered.  The evidence is that he currently rents a house for himself and his family at Bridgewater at a rental of $640 per week.  That equates to a monthly rental payment of approximately $2775.  He has demonstrated the capacity to pay that amount towards accommodating himself and his family. 

18. Undertaking an assessment of the price of comparable properties in the Statement of Agreed Facts, I consider that adequate provision would be made by increasing the specific legacy to Benjamin from the deceased’s will to $450,000.  While that would not be sufficient to enable him to purchase a comparable property in Bridgewater unencumbered, I consider it would be sufficient for him to be able to do so with a modest mortgage which would be within his financial capacity to service.  I do not accept Benjamin’s submission that he won’t be able to obtain a mortgage to enable purchase of suitable accommodation.  While his and his wife’s incomes are modest, I am satisfied that a deposit of $450,000 would provide a lender with sufficient security to lend approximately $200,000 secured by mortgage.  Further, I am satisfied that Benjamin would be in a position to meet such mortgage payments from his existing income given he would no longer need to find around $2775 per month in rent.  In arriving at this figure I have made some allowance for the risk of future interest rate increases.

19. After payment of specific legacies, the deceased’s estate is approximately $1.2 million.[19]  In forming a view as to what adequate and proper provision requires in this case I note that the additional legacy of $420,000 represents approximately one third of the residue of the deceased’s estate.  That still leaves a third each in trust to Kaiden and Darcy upon attaining their majority.  I expect the children’s inheritance will be soundly invested and increase over time.  I consider that pays due deference to the deceased’s testamentary intention that the bulk of her estate should be left to her grandsons while meeting her only child’s moral claim.  It strikes the right of balance between provision claims and testamentary freedom.  In all the circumstances it is just and convenient to adjust the testamentary disposition made by the deceased by effectively varying the monetary bequest made to Benjamin by the deceased from $30,000 to $450,000.  This will still leave Kaiden and Darcy the overwhelming majority of the deceased’s estate.

    [19]      Excluding the specific legacy made to the applicant.

    Conclusion

20. I would grant the application. I order that pursuant to s 7 of the Act, in lieu of the provision in sub clause 7.1 and schedule 3 of the deceased’s will for the gift and bequest of $30,000 to Benjamin, Benjamin is to receive the sum of $450,000. Provision of the additional sum of $420,000 is to be made from the residue of the deceased’s estate. I direct the parties to bring into Court minutes of order that reflect my reasons.

21. I would hear the parties as to costs.