Barrett v Public Trustee

[2004] NSWSC 991

CITATION:	Barrett v Public Trustee [2004] NSWSC 991
HEARING DATE(S):	19 October 2004
JUDGMENT DATE:	26 October 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin at 1
DECISION:	(1) I order that the summons be dismissed. (2) I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis. (3) I order that the Defendant be entitled to recoup from the estate of the late Ronald John Barrett ("the Deceased") the difference between his costs on the indemnity basis and the amount of the costs which he may recover pursuant to order (2) hereof. (4) The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claim by brother. Whether Plaintiff is an eligible person. Whether Plaintiff was a member of the same household as Deceased. Whether Plaintiff was dependent upon Deceased. Proceedings not instituted within prescribed period. Whether discretion to bring proceedings out of time has been activated. Factors which warrant the making of the application. Substantive claim of Plaintiff.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Petrohilos v Hunter (1991) 25 NSWLR 343 Re Fulop Deceased (1987) 8 NSWLR 679 Warren v McKnight (1996) 40 NSWLR 390
PARTIES :	Joseph Yedon Barrett (Plaintiff) Public Trustee (Defendant)
FILE NUMBER(S):	SC 4888 of 2003
COUNSEL:	Dr. L. Robinson (Plaintiff) Mr. L. Ellison (Defendant)
SOLICITORS:	G. H. Healey & Co - Bondi (Plaintiff) Clinch Neville Long (Defendant)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 26 October 2004

4888/03 JOSEPH YEDON BARRETT -v- PUBLIC TRUSTEE

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 16 September 2003 the Plaintiff, Joseph Yedon Barrett, claims provision for his maintenance and advancement in life out of the estate of his late brother Ronald John Barrett (to whom is shall refer as “the Deceased”).

3 The Deceased died on 11 August 2001, aged 73. He left a will dated 5 March 2001, probate whereof was on 31 October 2001 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased was unmarried and childless. He was one of the five children of his parents, both of whom had predeceased him. Of his four siblings only the Plaintiff survived the Deceased.

5 By his will the Deceased left the entirety of his estate to be divided equally among his niece, Judith Anne Miller, and her five children (two of whom are still infants, aged respectively 17 years and 14 years).

6 The inventory of property discloses that the assets of the estate include two pieces of real property (having estimated values of $270,000 and $150,000 respectively); moneys in bank accounts (totalling about $72,670); life policies (having a total value of about $91,600); shares (having a total value of about $162,900); livestock, farming plant, wool and crops (having a total value of about $45,000). In addition, the Deceased at the time of his death was registered proprietor as joint tenant of another piece of real property, located at Londonderry (having an estimated value of $150,000). That property devolved by survivorship upon the other joint tenant, Anne Marie Barrett. She is the wife of the Plaintiff. However, she and the Plaintiff separated on 25 September 2000, and they have lived apart since that time.

7 It should here be recorded that the Deceased’s niece, Judith Anne Miller, is one of the two children of the Plaintiff by his first wife, Mavis Hanks (whom he married on 3 December 1951 and from whom I gather he was subsequently divorced).

8 The Plaintiff who was born on 4 October 1940, is presently aged 74. It would appear, although there is no precise evidence in this regard, that the Plaintiff has been married 3 times. As well as the three children of his first wife the Plaintiff has at least one other child, being a son, Paul Anthony Barrett, who was born on 19 August 1971.

9 The Plaintiff, who is illiterate, has throughout his life suffered from a serious speech defect. In consequence, his responses during the course of his oral evidence at the hearing were interpreted by his son, Mr. Paul Barrett.

10 The Plaintiff has no occupational training or qualifications and his only work experience has been in the field of manual labour. He retired from employment at the age of 55 years on account of health reasons.

11 A written report from the Plaintiff’s treating doctor, Dr. Warwick J. Mackay, dated 28 June 2000 (Exhibit A) discloses that the Plaintiff suffers, or has suffered, from peripheral vascular disease, deep venous thrombosis (blood clot) in the left leg, aortic aneurysm, speech disorder. Dr. Mackay stated that the Plaintiff’s peripheral vascular disease had not deteriorated sufficiently, as yet, to require surgery although there is always the threat of losing a limb. He expressed the view that the Plaintiff’s prognosis was “guarded”. Dr. Mackay was of the opinion that the Plaintiff’s ability to manage his affairs was obviously compromised by his physical and social impairments and that he would, over time, require an increasing level of domestic assistance and ongoing medical surveillance for what the doctor described as “these serious conditions”.

12 Until 1995 (and, presumably, from the time when he retired from employment in 1985) the Plaintiff was in receipt of a disability pension. Since 1995 he has been in receipt of an aged pension, which is presently in an amount of $555 a fortnight. The Plaintiff resides in rented accommodation at 8 New Street, Windsor. The Court was provided with no information concerning that accommodation. I have already recorded that since September 2000 the Plaintiff and his wife have lived separately and apart. However, according to the Plaintiff’s oral evidence, they maintain a good relationship, and speak by telephone every week.

13 The Plaintiff’s son, Paul Barrett, pays the Plaintiff’s rent of $470 a fortnight for his accommodation at New Street, Windsor, and meets any shortfall in the Plaintiff’s outgoings and living expenses (which were estimated to total about $600 a fortnight, the shortfall being about $50 a fortnight). The motor car which the Plaintiff drives is owned by his son. According to the Plaintiff, because of his severe speech impediment, his son is one of the very few people who can understand what he says. Therefore, Mr. Paul Barrett has to act as interpreter in all face to face meetings between the Plaintiff and other people, and the Plaintiff is totally reliant upon his son in this regard.

14 Evidence was given by Judith Anne Miller concerning her financial and material circumstances and those of her five children (two of whom also provided affidavit evidence in the proceedings).

15 Mrs Miller, although the daughter of the Plaintiff by his first marriage, was in effect brought up by his parents (Mrs Miller’s grandparents) and by two of his unmarried siblings, one being the Deceased. The Plaintiff and his first wife separated in 1954 when Mrs Miller was aged only two. In consequence, according to Mrs Miller, she had a very close and loving relationship with the Deceased, who was more of a father to her than an uncle (and, as I infer from her evidence, was more of a father to her than was the Plaintiff himself).

16 In December 1995 the Deceased and the Plaintiff’s wife Mrs Anne Barrett, became registered proprietors as joint tenants of property situate at and known as 118 Reynolds Road, Londonderry (“the Londonderry property”). It would appear that the purchase price of that property, $195,000, was provided entirely by the Deceased.

17 Upon the purchase of the Londonderry property the Plaintiff and his wife resided therein. The Plaintiff remained in residence there until the death of the Deceased almost six years later. According to the Plaintiff, the Deceased also resided in the Londonderry property throughout that period.

18 It was the Plaintiff’s evidence that he assisted the Deceased by establishing and repairing fences on the Deceased’s cattle farm (located at Mallawa) and generally assisting in managing that property from the early 1990s until 2000. The Plaintiff said that the Deceased assisted him financially and helped him with any paperwork and business affairs. It was the Plaintiff’s evidence that he was in the habit of assisting the Deceased with shopping. He would drive the Deceased to shops, and, especially when the Deceased was ill, would drive the Deceased to various doctors.

19 Evidence was placed before the Court concerning the circumstances in which the present proceedings were instituted, since, it will be appreciated, the summons was filed some seven months after the expiry of the limitation period of 18 months from the death of the Deceased prescribed by section 16 of the Family Provision Act.

20 It is in the light of the foregoing evidence that the Court must proceed to a consideration of the claim of the Plaintiff. I have had the benefit of receiving written outlines of submissions and chronologies from Counsel for the respective parties. Those documents will be retained in the Court file.

21 At the outset the Plaintiff must establish that he is an eligible person within the meaning of the definition of that phrase contained in section 6(1) of the Family Provision Act. It will be appreciated that, if he is not an eligible person, he does not have the standing to bring the present proceedings and, in consequence, his claim must be dismissed.

22 However, even if it be established that the Plaintiff is an eligible person in relation to the Deceased, it is still necessary that he persuade the Court that its discretion should be exercised to allow the claim to be brought after the expiry of the 18 month limitation period.

23 Further, since the Plaintiff, if an eligible person at all, is an eligible person only within paragraph (d) of the definition of that phrase contained in section 6(1) of the Act, he must, as required by section 9(1) of the Act, establish that there are factors which warrant the making of the present application.

24 I should here observe that the evidence given on behalf of the Plaintiff concerning the circumstances in which he asserts that he is an eligible person in relation to the Deceased was skimpy in the extreme.

25 It was submitted on behalf of the Plaintiff that he is an eligible person in that he was a member of the same household as the Deceased and was partly dependent upon the Deceased. In respect to being a member of the same household the only evidence was the mere statement by the Plaintiff that throughout the period from the acquisition of the Londonderry property at the end of 1995 until the death of the Deceased the Plaintiff resided on the Londonderry property as also did the Deceased.

26 Throughout that period, however, the Deceased retained his own residence at 26 Hunt Street, Guildford. It would appear that during his visits to the Londonderry property the Deceased was in the practice of sleeping in a caravan located upon that estate, although he availed himself of the facilities of the house, such as the shower and the toilet. It would appear that the Deceased’s visits to Londonderry occurred essentially only at weekends, and not on every weekend. No evidence was offered by the Plaintiff concerning the nature of the activities of the Deceased during his visits to Londonderry, apart from the fact that the Plaintiff on occasion drove the Deceased to the shops and to his medical advisers. There was no evidence concerning their domestic arrangements during the Deceased’s visits, including such matters as, for example, meals partaken together, or recreational and social activities participated in by the Plaintiff and the Deceased.

27 Although throughout the period from the acquisition of the Londonderry property until the death of the Deceased, the Plaintiff was residing on that property with his wife, Mrs Anne Barrett, no evidence was offered by Mrs Barrett concerning the details of the lifestyle of her husband and of her brother in law (who had provided the purchase price for the property of which they were joint tenants and which, at his death, devolved by survivorship upon Mrs Barrett). No explanation was offered for the absence of any evidence from Mrs Barrett, despite the fact that, according to the Plaintiff, he remains good friends with her and they speak every week. Mrs Anne Barrett currently lives at Caloundra, in Queensland.

28 I am not satisfied that the Plaintiff has established that he and the deceased were members of the same household throughout the period whilst the Plaintiff was residing on the Londonderry property.

29 Although it might be thought that the Plaintiff and the Deceased, being brothers and being aged less than three years apart, might have been members of the same household during their childhood, nevertheless, no evidence was offered to the Court in this regard, and the Court is not entitled to assume that they were, in fact, members of the same household at that time.

30 It was submitted on behalf of the Plaintiff that he was partly dependent upon the Deceased. In support of that submission the Plaintiff relied upon alleged financial assistance given to him by the Deceased, and help with paperwork and business affairs. In this regard the sole evidence offered was that of the Plaintiff set forth in paragraph 9 of his affidavit of 4 November 2003.

The deceased assisted me financially and helped me with any paperwork and business affairs as I was not only illiterate, but due to my speech impediment could not make a telephone call or speak or be understood by the majority of people.

31 No details were offered as to the alleged financial assistance given to the Plaintiff by the Deceased. Neither was any evidence offered as to the nature of the paperwork or the business affairs referred to in that paragraph.

32 But even if the Deceased did on occasion give to the Plaintiff some financial assistance and help in paperwork and business affairs, those facts would not of themselves establish dependency upon the Deceased. As was observed by the Court of Appeal in Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 per Hope A-JA,

The word “dependent” is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact.

33 I am not persuaded that the evidence which has been proffered on behalf of the Plaintiff concerning financial and other practical assistance given to the Plaintiff by the Deceased establishes that the Plaintiff was partly dependent upon the Deceased.

34 It follows from each of my foregoing conclusions (that the Plaintiff was not a member of the same household as the Deceased and that the Plaintiff was not partly dependent upon the Deceased) that the Plaintiff has not established either limb of the definition of eligible person contained in paragraph (d) of section 6(1) of the Act. Since the Plaintiff is not an eligible person in relation the Deceased he lacks the standing to bring the present proceedings and his claim must be dismissed.

35 Nevertheless, if I be wrong in my foregoing conclusion that the Plaintiff is not an eligible person in relation to the Deceased, it is appropriate that I should proceed to a consideration of the claim of the Plaintiff.

36 I have already observed that the present proceedings were instituted some seven months after the expiry of the limitation period provided in section 16 of the Family Provision Act. Subsection (2) of that section provides that the Court may allow an application to be made “within such further period as the Court may, having regard to all the circumstance of the case but subject to subsection (3), by order, allow”. Subsection (3) is in the following terms,

The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:
(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or
(b) sufficient cause is shown for the application not having been made within that period.

37 Not only does the Defendant not consent to the application being made after the end of the prescribed period, but the Defendant actively opposes that course. Accordingly, it is necessary, in order to activate the Court’s discretion to allow the application to be made after the end of the prescribed period, for the Plaintiff to establish that sufficient cause is shown for the application not having been made within that period.

38 In this regard evidence was given by the Plaintiff, his son Mr. Paul Barrett, and the Solicitor for the Plaintiff, Mark Anthony Coorey.

39 That evidence discloses that the Plaintiff was reliant on his son in respect to the making of the present claim, which, according to the Plaintiff, he instructed his son to do in late January 2002. The Plaintiff was aware of the death of the Deceased on 11 August 2001. Indeed, I gather that the Plaintiff was present at the Deceased’s funeral. Some five months after the death of the Deceased, and well within the prescribed period, the Plaintiff instructed his son in respect to the making of a claim under the Family Provision Act. Mr. Paul Barrett communicated with G. H. Healey and Co. – Bondi, the Solicitors who have acted for the Plaintiff throughout these proceedings. That firm by letter dated 20 February 2002, communicated with the Public Trustee, stating,

We act for Mr Joseph Barrett who has instructed us in relation to a claim he wishes to bring pursuant to the provisions of the Family Provisions [ sic ] Act in respect of the Estate of Ronald John Barrett.
[Certain information and documentation were then requested]
Would you accept this letter as formal notification of intention to claim pending receipt of the above information.

40 Neither the Plaintiff nor his son gave evidence regarding their knowledge, if any, concerning the limitation period of eighteen months from the death of the Deceased. Evidence was given by Mr. Mark Coorey, the Solicitor who presently has the carriage of the matter in the firm of G. H. Healey and Co. – Bondi. Mr. Coorey was admitted as a solicitor in 1994 and has practised as such since 1999, being employed throughout that period by G. H. Healey and Co. – Bondi. He specialises in the field of litigation, and he has had experience in Family Provision matters. Mr. Coorey was not the solicitor who opened the file in the matter or who was responsible for the letter of 20 February 2002 from which I have quoted. He took over carriage of the matter in early 2003.

41 Mr. Coorey in his oral evidence under cross-examination said that he was familiar with the time limits in Family Provision proceedings. He had had no face to face meetings with the Plaintiff before the institution of the proceedings but had spoken with the Plaintiff’s son. Mr. Coorey said that he informed both the Plaintiff and Mr. Paul Barrett of the eighteen months limitation period and that he communicated that information to them before the expiry of that period. Mr. Coorey referred to the problems, consequent upon the Plaintiff’s illiteracy and speech impediment, which precluded him from obtaining instructions from the Plaintiff without the assistance of Mr. Paul Barrett acting as interpreter.

42 In his letter dated 19 May 2003 addressed to the Public Trustee Mr. Coorey said,

We are instructed that our client will lodge an application pursuant to the Family Provision Act 1982 as soon as possible.
We advise we have had difficulty in obtaining instructions in this matter due to our client’s poor medical health and disabilities.

43 Despite the foregoing statement in the letter of 19 May 2003 and the earlier statement of the Plaintiff’s intentions set forth in the letter of some fifteen months earlier, 20 February 2002, the present proceedings were not instituted until 16 September 2003. It will be appreciated that the letter of 20 February 2002 was sent some nine days after the expiry of the limitation period. The explanation offered by Mr. Coorey for the fact that the proceedings were not instituted on or before 11 February 2003 was the difficulty which he had in obtaining instructions from the Plaintiff. It was conceded on behalf of the Plaintiff that, on account of exigencies relating to the employment of Mr. Paul Barrett, it was sometimes difficult for him to accompany the Plaintiff to the solicitors or to communicate with the solicitors on his father’s behalf.

44 Nevertheless, it is difficult to accept that there would not have been some opportunity in the period from 20 February 2002 (when the Plaintiff’s claim was foreshadowed to the Defendant) and 11 February 2003 (when the prescribed period expired) in which the Plaintiff could have been accompanied by his son to visit the solicitors, or in which his son on behalf of the Plaintiff could have given express and firm instructions to the solicitors for the institution of the proceedings.

45 However, the attitude adopted by Mr. Coorey appears to have been that he should not institute the proceedings without having an affidavit of the Plaintiff available to be filed at the time of the filing of the summons. He was cross-examined concerning his knowledge as to whether a summons could be filed without the contemporaneous filing of an affidavit in support. Mr. Coorey, although aware that that could be done, considered that in the circumstances of the instant case it would be imprudent for him to do so before the expiry of the limitation period. Nevertheless, it should be recognised that when the proceedings were ultimately instituted by the filing of the summons on 16 September 2003, no affidavit accompanied that summons. Indeed the affidavit of the Plaintiff was sworn only on 4 November 2003, some seven weeks after the filing of the summons, and was also filed on 4 November 2003. That is, Mr. Coorey ultimately, after the expiry of the limitation period, did the very thing which he said he was unwilling to do before the expiry of the limitation period – that being to institute the proceedings without having an affidavit of the Plaintiff available to be filed in support of the summons.

46 In Warren v McKnight (1996) 40 NSWLR 390 Hodgson J (as he then was) said, at 394,

It seems to be common ground that there are four factors which can be relevant to the exercise of discretion to extend time for bringing an application under the Family Provision Act 1982. First, the sufficiency of the explanation of delay in making the claim; secondly, would there be any prejudice to beneficiaries; thirdly, has there been any unconscionable conduct by the plaintiff; and fourthly, the strength of the plaintiff’s case.

47 Before considering each of the foregoing factors, it is necessary to emphasise, however, that those factors are relevant to the exercise of the discretion of the Court. The Court is, however, precluded from embarking upon the exercise of its discretion unless sufficient cause is shown for the application not having been made within the prescribed period.

48 In the circumstances of the instant case it is apparent that within the prescribed period the Plaintiff was aware of the existence of the Family Provision Act and of his rights, whatever they may have been, to institute proceedings under that statute. Well within the prescribed period his intiention to make a claim under the Act was foreshadowed to the Defendant. Within the prescribed period the Plaintiff and his son were informed of the existence of such a limitation period.

49 In all these circumstances, therefore, I am not persuaded that sufficient cause has been shown for the application not having been made within the prescribed period. Accordingly, the discretion contemplated by subsection (2) of the section 16 has not been activated. It is unnecessary, therefore, for me to proceed to a consideration of the various factors identified by Hodgson J in Warren v McKnight.

50 Nevertheless, were it necessary for me to do so, I would observe that (as I have already stated) I am not satisfied of the sufficiency of the explanation of the Plaintiff’s delay in making the claim. Further, as will later appear, the evidence would justify the Court in awarding him, at most, only a relatively small amount. Thus, in any event, I would not be persuaded, were the discretion of the Court to be activated, to exercise that discretion in favour of making an order extending the time within which the Plaintiff should be allowed to institute the proceedings.

51 However, even if (contrary to the conclusions which I have already expressed concerning the status of the Plaintiff as an eligible person and concerning the application of the Plaintiff for an extension of the prescribed period) I were to proceed to a hearing of the substantive claim of the Plaintiff, it would be necessary, consequent upon the provisions of section 9(1) of the Act, for the Plaintiff to establish that there are factors which warrant the making of the application.

52 In considering the meaning of what he described as “this poorly conceived and clumsily expressed subsection (which formed no part of the Draft Bill produced by the Law Reform Commission)”, McLelland J (as he then was) said in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 that the factors referred to in section 9(1) are factors which, when added to facts which render the applicant an eligible person, give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a testator.

53 In the instant case it was the submission of the Plaintiff that the following matters constituted such factors:

(a) The relationship of interdependence which existed between the Plaintiff and Deceased.

54 I have already expressed my view that there is no evidence establishing such alleged interdependence.

(b) The impecuniosity of the Plaintiff.

55 It is quite apparent that the Plaintiff is not in good financial circumstances.

(c) The extensive contributions made by the Plaintiff to the conservation and improvement of the property of the Deceased.

56 I am not satisfied that the work performed on the Deceased’s property by the Plaintiff (which essentially consisted of some fencing work), can accurately be described in the foregoing terms as “extensive contributions … to the conservation and improvement to the property of the Deceased”.

(d) The fact that the Londonderry property, allegedly shared by the Deceased and the Plaintiff and the Plaintiff’s wife, was owned by the Deceased and Mrs. Anne Barrett as joint tenants.

57 It is not in dispute that the Londonderry property was owned by the Deceased and the Plaintiff’s wife as joint tenants. Although it was the submission on behalf of the Plaintiff that it may be inferred that the Plaintiff had made some financial and non-financial contributions to the acquisition and maintenance of that property, there is no evidence to justify such an inference being drawn. The evidence was silent as to the circumstances in which the Londonderry property was acquired in the joint names of the Deceased and the Plaintiff’s wife, apparently with moneys provided solely by the Deceased. Indeed, the only evidence concerning the circumstances in which the Londonderry property was acquired was contained in the affidavit of Judith Miller, filed on behalf of the Defendant. In paragraph 14 of that affidavit Mrs Miller said that from conversations with both the Deceased and the Plaintiff she understood that the Plaintiff’s name was not shown on the title because he was unable to obtain a loan because of his age.

(e) The contributions made by the Plaintiff to the welfare of the Deceased.

58 I have already commented concerning the nature and extent of those contributions, which were confined to the Plaintiff assisting the Deceased with shopping, and driving him to see his various medical advisers.

(f) The fact that the Plaintiff was the Deceased’s closest living relative.

59 I do not consider that that fact (even if true, and there is some suggestion that one John Gordon Barrett, who made an application under the Family Provision Act, asserted that he was a son of the Deceased) of itself constitutes a factor warranting the making of the application.

(g) The disabilities and the poor health of the Plaintiff and the fact that the Deceased was aware of those matters.

60 If the Plaintiff were otherwise entitled to an order for provision for his maintenance and advancement in life, his disabilities and continuing poor health, and the awareness of the Deceased in that regard could possibly constitute factors warranting the making of the application.

(h) The fact that at the time when the Deceased made his will the Plaintiff’s wife had left him and the Plaintiff had become financially reliant upon his son.

61 I have already observed that the evidence on behalf of the Plaintiff is skimpy. That is particularly so in regard to the domestic arrangements of the plaintiff, and the circumstances in which he and his wife separated. There is no evidence as to whether or not the Plaintiff has instituted or proposes to institute a property claim in the Family Court of Australia in respect to the Londonderry property. If, as appears to be being suggested on behalf of the Plaintiff, the Plaintiff contributed either to the purchase price or to the conservation and improvement of that property, then presumably he would have a claim in the Family Court for an interest in that property. In that regard, the asserted good relationship and the continuing contact between the Plaintiff and his wife would seem to be of relevance.

62 In addition to the foregoing matters the Plaintiff submits that the estate is considerable, having an estimated present value of almost $700,000, and that, in consequence, an order for provision could be made in favour of the plaintiff without impacting greatly on the testamentary entitlement of the beneficiaries.

63 I am not satisfied that any of the foregoing matters constitute factors of the nature described in section 9(1) of the Act. That conclusion of itself would have the effect of defeating the claim of the Plaintiff, even if that claim did not inevitably fail, firstly, in consequence of the Plaintiff not being able to establish that he is an eligible person; and then in consequence of his not being able to establish an entitlement to an order extending the prescribed period in which he could bring the proceedings.

64 Nevertheless, even if (contrary to each of my foregoing conclusions, and, in particular, contrary to the conclusion which I have just expressed, that there are no factors warranting the making of the application) I were to be satisfied that the Plaintiff had the standing to bring the proceedings, that the claim was not defeated by not being brought within time, and that there were factors of the nature referred to in section 9(1) of the Act, it is appropriate that I should express my views concerning the substantive claim of the Plaintiff.

65 The very modest financial and material circumstances of the Plaintiff, combined with his poor health and physical disabilities, as well as the fact that he has no employment skills or qualifications, would justify the Court in making an order for provision in his favour by awarding to him a relatively small fund to meet unexpected contingencies and to enable him to enhance his modest lifestyle. Nevertheless, in this regard, the possibility or even the likelihood, of an order being made in his favour by the Family Court of Australia in respect to the Londonderry property must be a relevant consideration.

66 Further, the substantive claim of the Plaintiff must be approached in the light of the competing claims of the other beneficiaries, two of whom are still infants. It is a fair summary of the financial and material circumstances of Mrs Miller and her children to say that her lifestyle is modest, as are those of her dependent children, and also of the two children who are living independently. As I have already observed, the relationship of Mrs Miller to the Deceased was more that of a daughter than that of a niece. Any order for provision which might be made in favour of the Plaintiff should not have the effect of significantly reducing the interest of Mrs Miller in the estate. Nevertheless, I would not consider that an award to the Plaintiff by way of a modest fund would necessarily be reduced, let alone be extinguished, in consequence of the financial and material circumstances of the beneficiaries.

67 I summarise as follows my foregoing conclusions.

68 The Plaintiff has not established either limb, let alone both limbs, of the definition of eligible person contained in paragraph (d) of section 6(1) of the Act. He has not established that he was dependent upon the Deceased or that he was a member of the same household of which the Deceased was a member. The Plaintiff has not established circumstances which would enable the discretion of the Court under section 16(2) to be enlivened, in order to extend the prescribed period for the institution of the present proceedings. But even if, contrary to the conclusion which I have just expressed, that discretion were to be enlivened, I would not exercise that discretion in favour of extending the prescribed period. Further, I am not satisfied that there are factors which warrant the making of the application. If it were appropriate for the Court to proceed to a consideration of the substantive claim of the Plaintiff, the most which he could expect would be a modest fund to assist him in meeting unexpected contingencies and in enhancing his modest lifestyle. An order providing for such a fund would not be reduced, let alone extinguished, by reason of the competing claims of the beneficiaries named in the will (who are the designated objects of the testamentary beneficence of the Deceased). However any such order should not have the effect of reducing the benefit which Mrs Miller is entitled to receive under the terms of the will.

69 For the foregoing reasons, the claim of the Plaintiff must be dismissed.

70 I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.

(3). I order that the Defendant be entitled to recoup from the estate of the late Ronald John Barrett (“the Deceased”) the difference between his costs on the indemnity basis and the amount of the costs which he may recover pursuant to order (2) hereof.

(4). The exhibits may be returned.

Last Modified: 10/26/2004