Blake v Griffiths
[2015] VCC 258
•16 March 2015
| IN THE COUNTY COURT OF VICTORIA AT Melbourne common Law division | Revised Restricted Suitable for Publication |
family property list
Case No. CI-13-04429
IN THE MATTER of an Application pursuant to Part IV of the Administration and Probate Act 1958
-and-
IN THE MATTER of the Estate of ELAINE LOUISE BLAKE, deceased
| BRANDON WILLIAM BLAKE (who brings this proceeding by his Administrator, State Trustees Limited) | Plaintiff |
| and | |
| WILLIAM GULLIVER GRIFFITHS (who is sued in his capacity as the Executor of the Will and Estate of the above-named deceased, Elaine Louise Blake) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2015 | |
DATE OF JUDGMENT: | 16 March 2015 | |
CASE MAY BE CITED AS: | Blake v Griffiths | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 258 | |
REASONS FOR JUDGMENT
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Claim by surviving intellectually and physically disabled son – concession that the Will of the deceased did not make proper provision for the deceased’s son – discretionary trust established under the Will of the deceased – fifty per cent of the deceased’s estate left in the discretionary trust for the deceased’s son – the other fifty per cent left to three charities – whether the whole of the estate should be applied to the benefit of the deceased’s son through the discretionary trust for life – whether the deceased’s son should take the whole of the deceased’s estate absolutely
Legislation Cited: Administration and Probate Act 1958; State Trustees (State Owned Company) Act 1994; Guardianship and Administration Act 1986
Cases Cited:Richard v AXA Trustees Ltd [2000] VSC 341; Shepherd v Shepherd [2010] NSWSC 167; Taylor v Farrugia [2009] NSWSC 801
Judgment: The Will of the deceased be amended to provide that the whole of the deceased’s residual estate be transferred to the plaintiff absolutely. The costs of the plaintiff and the defendant be paid out of the estate on an indemnity basis to be assessed by the Costs Court in default of agreement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Sanders | State Trustees Limited |
| For the Defendant | Mr R Miller | Taylor Splatt & Partners |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 29 August 2013, the plaintiff seeks a declaration that the distribution of the deceased’s estate by her Will did not make adequate provision for the maintenance and support of the plaintiff, and consequently, orders for provision for his maintenance and support, which the Court considers to be appropriate in the circumstances.
2 Mr D Sanders of counsel appeared for the plaintiff. Mr R Miller of counsel appeared for the defendant.
3 After some debate between counsel and myself, it became abundantly clear that the issues in the proceeding were rather simpler than it first appeared. The commendable approach taken by the defendant, in making it clear that the issues were very confined, led to counsel agreeing that it was unnecessary to require witnesses to attend for cross-examination.
4 In anticipation of a case of broader issues, the plaintiff prepared a very large Court Book (“PCB”). Much of the content of the Court Book became redundant to the proceeding, but I allowed Mr Sanders to tender most of the Court Book because he selectively referred to parts of it which meant that it was simpler to allow the whole of it to be tendered, save with some exceptions. I announced to counsel that I would permit that approach on the footing that I was not prepared to read the whole of the Court Book, but only those parts to which I was taken in counsels’ addresses.
5 The evidence which was then tended is as follows:
· The Plaintiff’s Court Book, pages 8-246; 298-400: Exhibit A;
· The affidavit of the defendant sworn 24 February 2015: Exhibit 1;
· The affidavit of Miss Lisa Kastaniotis, State manager of the Cancer Council of Victoria sworn 19 February 2015: Exhibit 2;
· The affidavit of Mr Jeremy Maxwell, general manager of fundraising for the Epilepsy Foundation of Victoria, sworn 20 February 2015: Exhibit 3;
· The affidavit of Mr Michael Goldman, deputy chief executive officer of Diabetes Australia, sworn 23 February 2015: Exhibit 4.
The Deceased and her Will
6 Elaine Louise Blake (“Elaine”) and Frederick William Blake (“Frederick”) were married on 23 April 1949. They had two children: twin sons, Brandon (the plaintiff), and Phillip, who were born on 24 April 1953.
7 Frederick predeceased Elaine. He died on 22 March 1994. Phillip predeceased Elaine. He died in 1987 from the effects of a brain tumour. Phillip entered into a relationship from which two children were born: Amica Anderson and Ebonie Schwarze.
8 Brandon developed a behavioural disturbance characterised by difficult and aggressive behaviour. Elaine and Frederic were unable to cope with his behaviour, which led him to being institutionalised from the age of nine years. He was first placed in Kew Cottages. He was subsequently placed in other institutions, interrupted by a short period when he returned to live with Elaine and Frederic in about 1973.
9 Brandon’s conduct appears to have been plagued by poor mental and physical health. His behavioural disturbance continued to be characterised by difficult and aggressive behaviour. He has suffered from epilepsy since birth. In 1982, he was diagnosed with diabetes. His epilepsy and diabetes are controlled by prescription medication.
10 Brandon presently resides at The Bays Aged Care Facility (“The Bays”) at 15 Cool Store Road, Hastings. It is, as its name suggests, an aged-care facility. It is not a facility specifically established to provide accommodation for individuals of Brandon’s age and with his behavioural and medical deficits. Brandon commenced residing at The Bays on 30 August 2013. It is clear from what I have read that those caring for Brandon consider that it is appropriate accommodation for him, with all of the facilities necessary to provide a reasonable quality of life. Furthermore, those who are caring for Brandon consider that he should remain at The Bays permanently.
11 Ms Nova Godley swore an affidavit on 20 February 2015[1] in which she described Brandon’s behavioural problems and the circumstances of his residence at The Bays. It is clear that he continues to be aggressive. His aggression is directed to both other residents and staff. He is now wheelchair-bound. His fine motor skills have deteriorated in the six months preceding Ms Godley swearing her affidavit. He requires assistance from staff to complete all of his activities of daily living, including assistance with meals. He has a number of favourite activities, such as playing with model trains and using recreational applications on an iPad. The impairment in his fine motor skills has reduced his capacity to engage in those, and similar activities.
[1]PCB 151-218
12 Brandon is now sixty-one years of age. Mr Sanders informed me that his predicted life expectancy is a further twenty-three years. Mr Miller did not cavil with that estimation, so I see no reason why I should not work on that premise.
13 Elaine left a Will dated 14 November 1995.[2] It has two codicils. Neither is relevant to the matters I must consider. In summary, her Will provided that her residuary estate be converted into cash and distributed as follows:
[2]PCB 15-18
· A one-half share to be divided equally between three charities: the Anti-Cancer Council of Victoria; the Epilepsy Foundation of Victoria and the Diabetes Foundation (Victoria).
· The remaining one-half share to be held by the defendant in a testamentary trust called “Brandon’s Fund,” to be distributed at the absolute discretion of the defendant “for or towards the maintenance, care, support and benefit in the life of” Brandon.
14 The principal asset in Elaine’s estate is her home at 14 Village Street, Balnarring. The defendant obtained probate, which was granted on 1 March 2013. He subsequently sold Elaine’s home. The net proceeds of sale were $465,000. The defendant prepared an inventory of assets and liabilities. The total assets of Elaine’s estate, referred to in the inventory, amounted to $553,151.68.
15 The defendant swore an affidavit on 19 August 2014, in which he said that Elaine’s estate is comprised of $451,244.74, invested with the National Australia Bank on a 30-day fixed term deposit; the sum of $40,697.67, deposited in a MacArthur Cook Investment Trust, and $7,184.67 in the trust account of the defendant’s solicitors. The total, as at the date he swore the affidavit, was $499,117.08.
16 The plaintiff’s nieces brought a Part IV claim against the deceased’s estate. I was informed by Mr Miller that it was settled on a commercial basis by the payment of $16,000. Mr Sanders did not dispute the manner in which their claim was compromised, nor the amount of the compromise.
The Defendant’s position
17 Mr Miller stated, as a preliminary issue, that the real purpose of the proceeding is to remove the defendant as the executor and trustee of the estate of the deceased. Section 34(1) of the Administration and Probate Act 1958 (“the Act”) empowers the relevant court to discharge or remove an executor or administrator.
18 Mr Miller submitted that I have no jurisdiction to make such an order. There is no doubt that I lack such jurisdiction. The jurisdiction exercised by the County Court is limited to Part IV. The reference to “the Court” in Part IV is defined in s90 as including the County Court. That is the only jurisdiction given to the County Court under the Act.
19 I think the submission is misconceived. The purpose of the proceeding is to provide proper maintenance and support for Brandon and not to remove the defendant as executor and trustee of Elaine’s Will, even though making provision absolutely for Brandon will have that effect. That result cannot validly operate against an exercise of discretion under Part IV.
20 The defendant’s position otherwise was, essentially, that I should honour the deceased’s entitlement to freedom of testation by paying due regard to the fact that providing a benefit to the three charities was important to the deceased. Clearly, her interest in benefiting each of them was stated expressly in clause 2(a)(i) of her Will:
“ As to one half share for the following charities in the shares set out thereunder being in respect of illnesses that have afflicted my family … .”
21 Elaine’s intention to benefit the Anti-Cancer Council of Victoria was based upon the fact that Phillip died from the consequences of a brain tumour. Her intention to benefit the Epilepsy Foundation and the Diabetes Foundation was based upon the fact that Brandon suffers from both of those conditions.
22 Furthermore, it was submitted that the defendant had something of a special and trusted relationship with the defendant. He was her trusted solicitor, to the extent that she appointed him the executor and trustee in her Will.
23 On the basis of the foregoing, it was submitted that I should, therefore, dispose of the plaintiff’s application by ordering that the one-half share left to the three charities be added to Brandon’s one-half share in the fund called “Brandon’s Fund”. The fund would then be administered by the defendant under the testamentary trust. Upon Brandon’s death, the residue would then be divided equally between the three charities.
24 The defendant expressly conceded that the Will did not make adequate provision for the maintenance and support of Brandon. The defendant submitted that its proposed alternative would achieve that result, and would honour the deceased’s intention to benefit Brandon during his lifetime, and at the same time benefit the three charities. In this way, the Will of the deceased would be fulfilled.
25 Each of the deponent’s affidavits, sworn on behalf of the three charities, indicates they have given their consent to the proposed alternative.
Brandon’s position
26 Mr Sanders submitted that the establishment of a discretionary trust is not an appropriate form of provision for Brandon. He submitted that adequate and proper provision demands that the provision be absolute.
27 Mr Sanders referred me to a number of authorities which considered the appropriateness of a testamentary trust. The first of those was Richard v AXA Trustees Ltd.[3] The deceased in that case left a sizeable estate which, doing the best I can from the body of the judgment, appears to be in excess of $1,000,000 and perhaps as high as $1.3 million. The deceased left the whole of the estate in a testamentary trust to be administered by the defendant, for the benefit of her mentally disturbed daughter. The trust was described as giving the defendant an uncontrolled discretion. There was evidence before Eames J that if the daughter was given increased autonomy over her funds, that might promote a reduction in mood swings. There was also evidence from the trustee that it would administer the estate reasonably by, for instance, purchasing an appropriate residence for the daughter and providing for her other needs.
[3][2000] VSC 341
28 His Honour considered the factors referred to in s91(4)(e) – (p), noting that none of those factors referred to the question of autonomy and the right of self-determination of a beneficiary. He then observed:
“… Counsel told me that their researches had located no authority which dealt with the question of the autonomy which accompanies the grant to a beneficiary who receives the funds or property in her own name, and the relevance of the denial of autonomy when the beneficiary is at the mercy of the discretion of another as to the allocation and use of such funds. In my view, there is no reason why such a factor is not one relevant consideration, amongst all others, to which the court might have regard.”[4]
[4]at [31]
29 His Honour noted that the evidence disclosed that the deceased structured her estate in a way that was based upon a flawed understanding of the nature and impact of the mental disorder from which her daughter suffered. His Honour then observed:
“… In my view, however, had the true facts been known a wise and just testatrix would have appreciated that the need for caution - so as to ensure that funds were not wasted - had to be balanced against the need to provide the maximum degree of freedom and autonomy possible to her daughter as the beneficiary of her estate. In particular, she would have concluded that it was appropriate that her daughter own the home in which she resided and that her daughter's illness was not so severe as to necessitate that the entirety of the remaining estate be administered by the trustee.”[5]
[5]At [32]
30 His Honour then dealt with a submission by the defendant that it would, at all times, act reasonably in the administration of the testamentary trust. His Honour’s observation is of particular relevance to the position of Brandon, so I will set them out in full:
“Mr Fraser, counsel for the defendant, submitted that whilst the control of the estate by the trustees imposed limitations on the personal autonomy of the plaintiff, the plaintiff is the sole beneficiary of the estate during her lifetime and there was no reason to presume that the trustee would exercise its unfettered discretion in an unreasonable way. He submitted that were that to be the case - for example, were the trustee to object to the plaintiff’s choice of home and refuse to provide funds for the purchase - then the plaintiff would be entitled to return to the court by way of appropriate proceedings to enforce the terms of the trust. Mr Boaden, counsel for the plaintiff, responded to that suggestion by stating that not merely would that be a cumbersome course for the plaintiff to adopt, it would be highly unlikely that the court would intervene so as to overturn the discretion of the trustee, given its unfettered scope by the terms of the will. He submitted that provided the trustee could show that it had performed its duties bona fide and without malice and had given genuine consideration to the exercise of its discretion, rather than act in a perverse or capricious way, there was no reasonable likelihood that the court would intervene. He referred to Hartigan Nominees Pty Ltd v Ridge and Esso Australia Ltd v Australian Petroleum Agents and Distributors Association. Mr Fraser submitted that the exercise of a discretion by a trustee was often challenged in the courts, and cited Karger v Paul. That decision, however, supports the contention of Mr Boaden that an exercise of discretion given in broad and unfettered terms would not be reviewed by the courts where the discretion was exercised in good faith and upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. Although, as Mr Fraser pointed out, the discretion here was to be exercised ‘to or for the maintenance benefit and support in life’ of the plaintiff, in my view Mr Boaden is right in suggesting that it would be very difficult for the plaintiff to effectively challenge a decision taken in good faith by the trustee rejecting an application for particular funding made by the plaintiff.”[6]
[6]at [33] – footnotes omitted
31 Mr Sanders also referred me to Shepherd v Shepherd,[7] and the observations made by McDougall J contrasting the vesting of an interest in income, as opposed to an entitlement to income under a testamentary trust, which would depend upon the goodwill and discretion of trustees.[8] He also referred me to Taylor v Farrugia,[9] and the observation of Brereton J that provision dependent upon the exercise of discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper.[10]
[7][2010] NSWSC 167
[8]at [55] and [69]
[9][2009] NSWSC 801
[10]at [62]
32 Mr Sanders referred me to a number of consequences which he submitted might occur if Brandon needed to satisfy the defendant of the need for trust monies to be expended in a particular manner and for a particular purpose. I think that Eames J very adequately dealt with that issue in Richard. His Honour considered that the exercise of discretion, when cast in broad and unfettered terms, could not be reviewed by a court where the discretion was exercised in good faith and upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. It is consistent with the submission made by Mr Sanders, to say that it would be difficult for Brandon to effectively challenge any decision made by the defendant rejecting an application for funding.
33 Therefore, it is necessary for me to examine the position occupied by State Trustees, particularly given the strident criticism made of it by Mr Miller, who submitted that State Trustees, in effect, has an ulterior motive in the conduct of this litigation because it stands to gain financially from the commissions and fees to which it will be entitled, as administrator, if Brandon obtains provision absolutely. I consider that those submissions are likewise misconceived, and constitute an attack upon the State Trustees which is unjustified.
The position of the State Trustee
34 State Trustees was established under the State Trustees (State Owned Company) Act 1994. It applied to the Victorian Civil and Administrative Tribunal (“VCAT”) to be appointed the administrator for Brandon pursuant to the provisions of the Guardianship and Administration Act 1986. That order was made. The order that applies at present was made on 26 September 2012.
35 In order to be appointed, VCAT needed to be satisfied that State Trustees met the prerequisites to be appointed an administrator under the Guardianship and Administration Act 1986. It obviously met those prerequisites because a Deputy President of VCAT made the following Order on 26 September 2012, upon being satisfied that Brandon had a disability and was unable, by reason of that disability, to make reasonable judgments about his estate:
“1.State Trustees Limited, 168 Exhibition Street, MELBOURNE VIC 3000, be appointed administrator of the estate of the represented person with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.
2.State Trustees Limited is entitled to the following remuneration (inclusive of GST) from the estate of the represented person for acting as administrator:
A.A commission on gross income received at a rate not exceeding:
(i)3.3% in respect of Centrelink or Department of Veterans’ Affairs pensions; and
(ii)6.6% in respect of all other income.
B.A once only capital commission not exceeding 5.5% of the gross value of any assets of the estate; and
C.A fee not exceeding 1.1% per annum on the capital sum invested in any common fund of State Trustees Limited
For any services provided to the estate State Trustees Limited or its subsidiary STL Financial Services Limited is entitled to remuneration at a rate not exceeding the amount set in the scale of charges lodged with the Treasurer and published in the Government Gazette.”[11]
[11]PCB 302
36 What is abundantly clear is, firstly, the Deputy President was satisfied that State Trustees satisfied all of the prerequisites under the Guardianship and Administration Act 1986, and should be appointed to be Brandon’s administrator, and secondly, that its commission and fees were reasonable.
37 State Trustees prepared a s61 report dated 6 August 2012 as required under the Guardianship and Administration Act 1986[12] in support of an application to continue as Brandon’s administrator. It is a short report which refers to a number of matters including, critically, that a financial plan had been implemented for Brandon’s benefit; that he had an asset balance of $80,047.90 at that time; a reference to the sources of his income, and an account of his expenditure. It appears to me to demonstrate proper management of his financial affairs, and attention to his needs.
[12]PCB 50-52
38 Mr Miller used the order of VCAT to calculate the commissions and fees which would be earned by State Trustees if the estate were provided to Brandon absolutely. He worked on the figure of $450,000 as representing the monies invested by the defendant. He submitted that State Trustees would earn a once only capital commission at 5.5 per cent, equalling $24,750, an annual commission at 6.6 per cent, equalling $1,350 and common fund fees of approximately $4,950. He submitted that in the first year of State Trustees administration of Brandon’s estate, it would earn $31,050.
39 Mr Miller compared that to the position of the defendant, who would be entitled to an executor’s commission of $18,000, and an annual administration fee capped at $2,000 per year. In other words, in the first year of his administration of the estate, he would earn $20,000.
40 I am not convinced that the disparity between the cost of administration of Brandon’s funds by State Trustees and the defendant is as telling a factor as Mr Miller submitted it is. I will return to this subject later in these Reasons.
41 Mr Yassine, senior personal financial consultant with State Trustees, swore two affidavits, on 24 June 2014 and 23 February 2015. In his first affidavit, he said that Brandon had $78,061.98 invested with State Trustees. His only other asset is furniture and personal property valued at approximately $5,883.95.[13] In his second affidavit, he said that when a client’s assets are less than approximately $75,000, a standard financial plan is implemented. The focus of the management of the funds is the preservation and investment of funds.
[13]PCB 11
42 In his second affidavit, Mr Yassine exhibited Brandon’s client budget as at 12 February 2015. It demonstrates that Brandon receives a Disability Support Pension of $854.30 per fortnight and $55.05 in investment income. His total income is $909.35 per fortnight. Brandon’s incurred expenses for coverage of personal expenses, accommodation expenses and fees, and commissions, amounted to $2,100.48.[14]
[14]PCB 42
43 A report was commissioned from Ms Shelley Earl, of Shelley Earl Consulting. Ms Earl describes herself as a recreation specialist whose particular interest is in the assessment of the needs of the disabled, elderly and other disadvantaged people.[15] Ms Godley commented upon Ms Earl’s report.[16] Ms Earl costed what she considered to be Brandon’s needs over his lifetime. Her costing on that basis is $722,720. Ms Godley’s costing for the same needs is $1,357,517. Mr Sanders prepared a schedule which contains a breakdown of the items costed by Ms Earl and the corresponding costing by Ms Godley. It is a very useful document because it breaks down the detail of Ms Earl’s and Ms Godley’s reports which occupy some 102 pages of the Court Book.[17] Mr Miller agreed that the schedule demonstrates the breakdown of the items costed by Ms Earl and Ms Godley.
[15]PCB 115-150
[16]PCB 151-218
[17]A copy of the schedule is annexed to these Reasons as Appendix “A”
44 Mr Miller added to his criticisms of State Trustees by pointing out that although State Trustees has funds which it must apply for Brandon’s benefit, it has not done so. He pointed to the evidence which demonstrated that Brandon has income which appears to be adequate to maintain him, but in my opinion, only at a very basic level. He also pointed to the fact that although State Trustees submitted that Brandon has the needs outlined by Ms Earl and Ms Godley, no serious effort has been made to expend the monies administered by State Trustees to meet those needs. I understood that submission to suggest, therefore, that State Trustees is not discharging its statutory duty.
45 I do not accept that Mr Miller’s overall characterisation of State Trustees’ criticism has any merit. Firstly, the commissions and fees were allowed by a Deputy President of VCAT. I must accept that the Deputy President gave consideration to the claim for commissions and fees and considered them to be reasonable. Secondly, I accept the evidence of Mr Yassine, that a balance has to be struck between expending what little monies they administer for Brandon, against preserving a fund which can be invested to earn income on top of his receipt of the Disability Support Pension.
Which Administrator?
46 After giving due consideration to the evidence and the submissions made by Mr Sanders and Mr Miller, I have concluded that it is in Brandon’s best interests to have the monies in the estate provided to him absolutely.
47 My reasons for reaching that conclusion are as follows:
48 I am influenced by a consistent theme in Richard, Shepherd and Taylor, that a provision which is dependent upon the exercise of discretion by a trustee of a discretionary testamentary trust may be inadequate or improper provision.
49 For the reasons which are evident in Richard, Shepherd and Taylor, I have concluded that the provision dependent upon the exercise of discretion by the defendant is inadequate and improper.
50 If Brandon has a particular need which comes at a financial cost, then a decision must be made by State Trustees and the defendant as to whether there is a reasonable basis for the need, and whether the financial cost is reasonable. The person who considers that Brandon has that need, presumably Ms Godley, will have to apply to both State Trustees and the defendant to undertake the foregoing analysis and to determine who will meet the financial cost.
51 If there is any level of disagreement between State Trustees and the defendant, then that will need to be resolved in some manner. The only challenge which Brandon can make to an exercise of discretion by the defendant is to bring a proceeding as was referred to in Richard. It would be unfortunate if resorting to a proceeding was necessary, as it would be very costly and would not necessarily be successful. If the defendant, for good reason or bad, disagreed that Brandon had a particular need, or that the financial cost was unacceptable, then that might result in Brandon not having that need met, if the funds administered by the State Trustees were inadequate.
52 To make provision for Brandon absolutely means that the funds are his. He will not be beholden to any other party in accessing the funds and applying them to meet his needs.
53 In reaching these conclusions, I do not doubt that the defendant considers it to be his paramount duty to act in the best interests of Brandon, and that he would take steps to ensure that his needs were provided for from the trust monies. I have also paid due regard to Elaine’s right to freedom of testation, and I have also considered whether there is any competing moral claim by the charities. There is no evidence to suggest there is such a competing moral claim, except that each of the charities is probably a not-for-profit organisation which depends upon a public benefaction in order to meet the needs of persons who are reliant on charities of that kind.
54 Lastly, I consider that ordering absolute provision for Brandon is in his best interests. It eliminates the prospect of there being any controversy in the administration of the total amount of funds available to meet the financial cost of his needs. It enables State Trustees, as the sole administrator, to undertake its statutory obligations unconditionally, which I think is a very desirable outcome. I think State Trustees has the expertise to administer Brandon’s funds efficiently and properly.
Orders
55 Subject to any further submissions to be made by counsel, I propose to make the following orders:
(1) That clause 2(a)(i) and (ii) of the Will be amended to provide that the whole of the deceased’s residual estate be transferred to Brandon absolutely.
(2) The costs of the plaintiff and the defendant be paid out of the estate on an indemnity basis to be assessed by the Costs Court in default of agreement.
Appendix “A”
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