Clark v Public Trustee

[2006] NSWSC 817

CITATION:	Clark v Public Trustee [2006] NSWSC 817
HEARING DATE(S):	1 and 2 May 2006
JUDGMENT DATE :	15 August 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that the summons be dismissed. (2). I order that the Plaintiffs 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 Frank Gillings (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis. (4). The exhibits may be returned.
CATCHWORDS:	Succession. Family Provision. Claims by two adult children. Financial and material circumstances of Plaintiffs. Obligation upon applicant for provision to place before the Court as fully and as frankly as possible all available information concerning her or his financial and material circumstances. Whether each plaintiff has been left without adequate provision for her or his proper maintenance. Competing claim of chief beneficiary, who is widow of Deceased. Only significant asset of estate is matrimonial home of Deceased, to which chief beneficiary made substantial financial and personal contributions. Plaintiffs must establish their claims upon their own merits. Claims of Plaintiffs cannot be established, or enhanced, by proving, if such be the case, that chief beneficiary, had she been an applicant for provision, might have been unsuccessful in her claim.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731
PARTIES:	Kaye Clark (First Plaintiff) Leonard Gillings (Second Plaintiff) The Public Trustee (Defendant)
FILE NUMBER(S):	SC 6184 of 2004
COUNSEL:	Mr. B. Burke (Plaintiffs) Mr. L. Ellison SC (Defendants)
SOLICITORS:	Courtenay & Co (Plaintiffs) Clinch Neville Long (Defendant)

- 18 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 15 August 2006

6184 of 2004 KAYE CLARK and ANOR –v- PUBLIC TRUSTEE

JUDGMENT

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

2 By summons filed on 18 November 2004 Kaye Clark and Leonard Gillings claim that provision be made for their respective maintenance, education and advancement in life out of the estate of their late father Frank Gillings (to whom I shall refer as “the Deceased”).

3 The Deceased died on 19 May 2003, aged 85. He left a will dated 11 May 2000, probate whereof was on 27 May 2004 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

4 The following assets, and the estimated values thereof, are set forth in the inventory of property:

Real estate situate at and known as 28 Keating Street, Maroubra - $1,200,000

Moneys in bank accounts, totalling $122,177

Centrelink final pension - $404

Two motor vehicles, totalling $6,100

Total - $1,328,681

5 The Defendant has realised all assets, other than the house property at 28 Keating Street, Maroubra (which was the matrimonial home of the Deceased and his wife, Mrs. Veronica Gillings). The current balance in the estate general ledger account at the time of the hearing was $57,220.

6 The liabilities of the estate at the death of the Deceased were as follows:

Anne Wilson Funerals - $5,969

Prince of Wales Hospital - $2,392

Overdraft with the Commonwealth Bank - $30,640

Veronica Cecilia Lazarus Gillings, personal loan to Deceased - $160,565

7 Subsequently all the liabilities of the estate were paid, apart from $160,565 in respect to the personal loan made by Mrs Veronica Gillings to the Deceased, the Defendant’s statutory commission on unrealised assets and the costs of the administration of the estate (subsequently quantified at $17,163), and the costs of the present proceedings.

8 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration, since the Plaintiffs (or either of them), if successful, will be entitled to their costs out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to his costs out of the estate. It was estimated on behalf of the Plaintiffs that their costs will total a little over $47,000, whilst it was estimated on behalf of the Defendant that his costs will total a little over $43,000. That is, the totality of the costs of the proceedings of all parties will be in the vicinity of $90,000. It will be appreciated that the assets of the estate, apart from the house property, are not sufficient to meet the foregoing totality of costs, if all those costs are ultimately payable out of the estate.

9 The Deceased married twice. Of his first marriage, were born two children, being Kaye (now Mrs Clark) on 17 September 1944 and Leonard on 8 December 1949. They are the two Plaintiffs in the present proceedings.

10 The Deceased’s first wife died in 1968. The Deceased subsequently met Veronica Cecilia Lazarus, whom he married on 21 June 1974. No children were born to the second marriage of the Deceased.

11 By his will the Deceased gave a legacy of $5,000 to each of his two children and a legacy of $2,500 to each of his four named grandchildren. The Deceased gave the residue of his estate, after payment of estate liabilities, upon trust for his widow.

12 The legacies to the four named grandchildren, totalling $10,000, have been paid. At the direction of Mrs Veronica Gillings the 1971 Holden motor vehicle (having a estimated value of $3,100) was transferred to the Plaintiff Leonard Gillings, and the 1963 Holden motor vehicle (having an estimated value of $3,000) was transferred to a grandson Craig Gillings.

13 The Deceased throughout most of his working life conducted a spare parts business known as Maroubra Junction Spare Parts. That business, which was established by the Deceased in the early 1950s, was conducted through the vehicle of a company, Maroubra Junction Spare Parts Pty Limited. At the outset that business, located at Maroubra Junction, was operated by the Deceased in conjunction with other persons. However, from about 1959 the Deceased operated the business as sole proprietor, although at a later stage each of his two children became shareholders in the company. In 1966 the business relocated to new premises at 803 Anzac Parade, Maroubra. Those premises were acquired by a company Group Developers Pty Limited, in which the Deceased held a one third interest. The other two thirds interests were held by entities which also occupied those premises. Subsequently, in the late 1970s, the other two occupiers of the premises moved elsewhere, and the Deceased acquired their interests in the company which owned the premises.

14 The First Plaintiff (to whom I shall for convenience, and without intending any disrespect, refer as “Kaye”) is presently aged 61. She is a widow, her husband having died in October 2003.

15 Kaye after leaving school at the age of 15 at about the end of 1959, subsequently worked in various employments. After working as a secretary for a motor spare parts wholesaler in Sydney from 1960 until 1966, she was employed by Maroubra Junction Spare Parts from 1966 until the birth of her first child in 1973. Kaye had married in 1971, and in 1976 she, her husband and their two small children removed from Sydney to Brisbane.

16 Kaye’s husband died in October 2003, as a result of liver cancer. Her children are now grown up and are no longer dependent upon her.

17 Kaye continues to reside in the house property at 38 Chipping Drive, Alexandra Hills in Queensland which was the family home of herself and her husband. That house property has been valued at between $275,000 and $295,000.

18 Kaye and Leonard were the sole beneficiaries in the estate of Lawrence Gillings, the brother of the Deceased, who died in September 2004, before the institution of the present proceedings. In February 2005 each of Kaye and Leonard received from their uncle’s estate the sum of $234,818, being half the proceeds of sale of his house property at Scarborough at Western Australia. In May 2005 each of the Plaintiffs received a further sum of $5,237 from their uncle’s estate. That is, they each received in total a little over $240,000.

19 At the time of the commencement of the proceedings Kaye was in employment as a secretary for the Holy Spirit Sisters, with whom she had worked for a period of eighteen years. She gave up that employment in April 2005, as a result of degenerative back problems which she had been experiencing for some time.

20 In December 2005 Kaye commenced temporary employment, which continued until the latter part of April 2006, shortly before the commencement of the hearing of the present proceedings. At the time of the hearing she was not in employment.

21 Kaye’s assets consist of:

House property situate at and known as 38 Chipping Drive, Alexandra Hills, Queensland, having an estimated value of between $275,000 and $295,000.
2000 Toyota Camry motor vehicle, having an estimated value of $11,000

Moneys in bank, $35,000

Superannuation entitlement, $104,000

22 Kaye has no liabilities, having paid out her mortgage and other debts when she received the inheritance from her uncle in 2005. She also used that inheritance for refurbishment of and repairs to her residence, and for the purchase of new furniture and furnishings. However, according to Kaye, her house is still in need of repairs, especially on account of drainage problems, and the necessity for new toilets.

23 From the funds which she received from her uncle Kaye gave an amount of $10,000 to each of her two daughters. In addition, she provided $30,000 as a deposit on a residence for one of her daughters in July 2005. According to Kaye, that daughter, Joanne, has treated that amount as a loan. However, Kaye does not expect the money to be repaid.

24 In February 2005, Kaye on the advice of her financial advisor, withdrew from the St. George Bank $100,000 (representing the balance of the inheritance from her uncle). Of that amount $50,000 was transferred to a cash management account, and then transferred to what Kaye described as “my Asguard Superfund”. The remaining $50,000 was used by her to pay off monthly credit card repayments, for day to day living expenses, and to fund the present proceedings.

25 The foregoing superannuation entitlement is now in an amount of $104,000, and is redeemable when Kaye reaches the age of 65 (in three years’ time). She presently has $35,000 in her bank account.

26 Whilst she was in employment in early 2006 as a temporary administrative assistant, Kaye earned an average of $465 net a week, working an average of about 38 hours a week. Her last temporary assignment came to an end shortly before the hearing of the present proceedings. It would appear from her evidence that Kaye is willing to take other temporary employment, if such becomes available.

27 Kaye gave evidence of her monthly expenditure totalling $1,666. Her only present liability is about $3,000 owing on her St. George MasterCard, upon which she makes monthly payments of $64.

28 It emerged under cross-examination that Kaye was the sole director and secretary and a shareholder in a company Calion Pty Limited (which had been the family company of herself, her late husband and their two daughters since 1990). Although Kaye said that she did not think that that company was worth anything, it also emerged that the company had tax losses of about $46,000, which might make it worth something to a potential purchaser. No reference to that company was made in Kaye’s affidavit evidence.

29 The Second Plaintiff (to whom I shall for convenience, and without intending any disrespect, refer as “Leonard”), is presently aged 56.

30 Leonard left school in 1966, when he was aged 17. He immediately starting working for the Deceased at Maroubra Junction Spare Parts. With the exception of about two weeks in early 1996 Leonard worked for the Deceased from 1966 until mid-1997. Even before he had left school Leonard assisted his father in the business outside school hours.

31 Leonard married in 1980. He and his wife have two children, presently aged 24 and 19.

32 During his lifetime the Deceased provided Leonard and his family with not inconsiderable financial assistance. In 1976 the Deceased gave Leonard $10,000 by way of deposit towards the purchase of a home unit at Coogee, as well as paying the legal costs and stamp duty for that purchase. In addition, the Deceased paid for at least the carpeting in that home unit. After his marriage that home unit became the family home of Leonard and his wife. When Leonard subsequently purchased a house property at Kingsgrove in about 1983 the Deceased again gave him financial assistance. In 1988, Leonard and his family removed to Berkeley Vale on the Central Coast. Leonard continued to work for his father after relocating to Berkeley Vale, travelling daily between there and Maroubra.

33 In 2002 Leonard and his wife purchased their present residence at 237 Wyee Road, Wyee. Since 1998 Leonard has been a self employed courier, conducting his business under the vehicle of a company, L&C Couriers Pty Limited. He is contracted to a freight company in Newcastle. The gross income of Leonard’s business as a self-employed courier is about $1,400 a week. He incurs various business expenses in earning that income. His taxable income is in the range of about $2,600 to $3,000 a month.

34 Leonard’s wife Carol has been employed as a storewoman by Fitovers Eyewear, where she earns about $900 to $1,000 a week net.

35 According to his affidavit, Leonard and his wife have the following assets (to which they ascribed the following values):

House property at 237 Wyee Road, Wyee, $310,000 to $330,000

1971 Holden motor vehicle, $3,000

Holden utility, $40,000

1938 Ford motor vehicle, $30,000

Cash at bank, $20,000

Superannuation (redeemable at age 65) $2,200

36 However, under cross-examination it emerged that Leonard owns a further motor vehicle which was not referred to in his affidavit evidence. That is a 2003 Ford Transit Van, which Leonard holds under a leasing arrangement. He said that it was worth $35,000 when new, but that its present value is now about $20,000. It would appear, therefore, that Leonard and his wife between them have four motor vehicles.

37 The liabilities of Leonard and his wife are:

Australian Tax Office - $20,000

Citibank - $550

Citibank - $6,513

Westpac - $19,881

Commonwealth Bank - $5,895

Coles Myer - $1,072

38 In his affidavit evidence Leonard gave details of the current weekly expenses of his wife and himself, totalling $2,247.

39 In the mid-1990s Leonard suffered what he described as a nervous breakdown. He was unable to work for a period, and he ceased employment with his father. He subsequently commenced work as a self-employed courier. During that period of unemployment Leonard incurred considerable credit card debt. Most of the liabilities which he presently owes to Citibank, Westpac, the Commonwealth Bank and Coles Myer represent amounts outstanding on credit cards.

40 In 2005 Leonard, like Kaye, received from the estate of his late uncle Lawrence Gillings amounts totalling a little over $240,000.

41 Leonard used a considerable part of the inheritance from his uncle in paying off the mortgage on his residence at Wyee, and also in rebuilding that residence, which in 2002 had been burnt to the ground. Although insured, there was a shortfall in respect to the replacement of household items and contents, as well as in respect to the reconstruction of the residence.

42 Of the moneys received from his late uncle’s estate there is about $20,000 remaining in Leonard’s bank account.

43 In about July – August 2005 Leonard purchased a motor vehicle for his daughter at a cost of $4,500. He has also given financial assistance to his son in respect to motor vehicles (at a cost of $1,400) in about April 2005, and has purchased a washing machine (for about $700) for his son in about September 2005. Those gifts were regarded by Leonard and his wife as being, to an extent, recompense for the fact that when they were in financial difficulties after the fire and when Leonard was not able to work they used money from trust funds of their two children in order to meet everyday living expenses. They used the entirety of a trust fund of their son in an amount of $4,000, and an amount of about $2,500 from a trust fund of their daughter. Those trust funds had been set up by the Deceased during his lifetime for the benefit of those two grandchildren.

44 On account of health problems Leonard is currently taking medication for blood pressure and also medication known as Aropax.

45 Leonard queried whether, in the light of his previous health problems, he would be able to continue working until he reaches the age of 65. He said that if and when he did retire, he would have to rely on an age pension, since he has not been able to afford to contribute to his superannuation fund.

46 Mrs. Veronica Gillings (who was known to the Deceased as “Bonnie” and to whom I shall for convenience, and without intending any disrespect, refer as “Veronica”) first met the Deceased in late 1969. They became engaged several years before their marriage on 21 June 1974. At the time when Veronica met the Deceased she was permanently employed by Clyde Industries Pty Limited. She also worked in a part-time position on Friday nights, all day Saturdays and public holidays with the Totalisator Agency Board, which part-time employment continued until 1974. After Clyde Industries moved to North Sydney Veronica commenced work with June Millinery Pty Limited in an accounting position. She subsequently worked as an accountant for E. G. Bishops Pty Limited. However, she resigned from that position after about two and a half years, as a result of the Deceased requesting that she spend more time with his company. She thereupon took up the permanent position of accountant with that company, as well as becoming company secretary and a director of Maroubra Junction Spare Parts Pty Limited.

47 From 1974 to 1981 Veronica was employed on the Aboriginal Family Resettlement Project, firstly as accountant, and then as an auditor and consultant, on a salary of $4,000 a month. She resigned from that position in 1981 on account of the Deceased’s worsening asthma, and also to enable her to do more work for the Deceased’s company.

48 Veronica gave evidence concerning the health problems suffered by the Deceased throughout their marriage, and her duties and responsibilities in looking after the Deceased and also in the administration of his company throughout the period of their marriage.

49 At the time of their marriage the Deceased was residing with Leonard in the house property at 28 Keating Street, Maroubra (to which I shall refer as “the Keating Street residence”), whilst Veronica was residing in a rented home unit at 21/50 Carr Street, Coogee. At the outset of their marriage Veronica and the Deceased lived in the Carr Street unit, Leonard continuing to reside in the Keating Street residence.

50 In 1970 the Deceased and Veronica purchased a block of land at Baulkham Hills for $8,550, each contributing equally to that purchase price. It was their intention to have a residence constructed on that land, and indeed they had plans drawn up by an architect and had chosen a builder for the project. However, on account of the location of the Deceased’s business at Maroubra and the fact that the Deceased’s medical advisor was also located at Maroubra, they decided it was not practical for them to reside at Baukham Hills. They subsequently sold the Baulkham Hills land in October 1978 for $25,000.

51 At the time of their marriage Veronica was reluctant to live in the Keating Street property. However, at the insistence of the Deceased extensive renovations were made to that property and ultimately Veronica and the Deceased moved into residence therein in about 1975. Leonard had left the Keating Street residence about five years earlier and had moved into the home unit at Coogee to which I have already referred. Veronica paid one half of the cost of the renovations and alterations to the Keating Street property, together with the cost of all PC items, and other additional items (such as white goods, furnishings and linen). All the furniture in the house came from Veronica’s previous residence in Carr Street, Coogee. However the Deceased paid for the carpeting and a television set. Veronica arranged to have the grounds of the Keating Street property landscaped.

52 After the Deceased’s period in hospital in the late 1990s Veronica, at her own expense, carried out modifications to one bathroom, and installed modern battery operated doors to the garage. She also replaced a portion of the timber fence and replaced the guttering at the residence.

53 Further renovations to the Keating Street residence were undertaken by Veronica and the Deceased in 2000-2001, including battery operated blinds, replacement of cement paths and driveways, replacement of internal doors, timber architraves and windows, as well as painting and wallpapering.

54 In January 2002 Veronica sold for $63,500 land which she had owned at Hawks Nest, and which she had purchased many years previously for $25,000 out of her own funds. She contributed those proceeds of sale towards the renovations and improvements to the Keating Street residence (which cost in totality about $300,000).

55 In about 1990 the Deceased embarked upon the activity of horse breeding. Veronica said that she did not participate in that activity, although she assisted the Deceased financially, and attended to the maintaining of the financial records relating to that activity. Veronica lent to the Deceased amounts totalling about $224,500, which amounts were not repaid. Other amounts owing by the Deceased, representing losses incurred in his horse breeding activities, were apparently able to be written off by him.

56 In addition to the foregoing amounts, totalling $224, 500, Veronica in 1986 made a personal loan to the Deceased of $62,562.

57 Although Veronica was unwilling to disclose her age during the course of the hearing, nevertheless, a historical company extract in respect to Maroubra Junction Spare Parts Pty Limited (which is an annexure to Kaye’s affidavit of 14 May 2005) reveals that Veronica was born on 12 October 1939 and in presently aged 66.

58 At the present time, apart from the Keating Street property (which has an estimated value of $1,200,000), Veronica’s assets consist only of the current balance in a cash management account of $1,700, and a 1975 Triumph sedan motor vehicle, having an insurance value of $3,000. Her income consists of a Centrelink pension of $453.95 a fortnight. Veronica has the following liabilities:

Personal loan from her nephew, Paul Lazarus, $6,000

Personal loan from Kepl Pty Limited, $4,000

Cash loan from J. Gundlinger, $377

ANZ Bank overdraft, currently in an amount of about $5,000.

59 It was Veronica’s evidence that it has only been with assistance from her nephew that she has managed to cope financially since the death of the Deceased. She said that she has been unable to afford petrol or other running expenses for her motor car since the Deceased’s death, and that she has not been able to socialise. Veronica suffers from an ophthalmic condition (which requires regular monitoring) and from a form of nerve deafness (which requires her to use a digital hearing aid in certain circumstances).

60 Since the death of the Deceased. Veronica has made on behalf of the estate payments totalling $23,119, those payments being essentially for maintenance and outgoings in respect of the Keating Street residence.

61 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of each Plaintiff. I have had the benefit of receiving a written outline of submissions and a chronology from Senior Counsel for the Defendant, as well as a chronology from Counsel for the Plaintiffs. Those documents will be retained in the Court file.

62 Each of the Plaintiffs, as a child of the Deceased, is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, each Plaintiff has the standing to bring the present proceedings.

63 It will be appreciated that Veronica is also an eligible person in relation to the Deceased, coming within paragraph (a) of the foregoing definition. Apart from the two Plaintiffs and Veronica there are no other eligible persons in relation to the Deceased.

64 At the outset it cannot be emphasised too strongly that an applicant for an order for provision has an obligation to place before the Court as fully and as frankly as possible all relevant evidence concerning the financial and material circumstances of that applicant. Each of Kaye and Leonard has failed to do so, at least in their respective affidavit evidence. Kaye failed to make any reference to the company Calion Pty Limited, which may have a value to her of about $46,000. Leonard failed to make reference to his fourth motor vehicle, being a 2003 Ford Transit Van, having a present value of about $20,000, and when new having a value of $35,000.

65 A very considerable quantity of evidence was placed before the Court concerning the respective relationships between, on the one hand, the Plaintiffs and Veronica, and, on the other hand, between each of the Plaintiffs and Veronica with the Deceased.

66 It is a fair summary of that evidence to say that the Plaintiffs intensely dislike Veronica, and that Veronica has largely reciprocated those sentiments. (That reciprocation was manifested in the extraordinary incident where Veronica sent to Kaye, ostensibly as a Christmas gift, a knife and an accompanying written message.)

67 It cannot be emphasised too strongly that an applicant for an order for provision must establish her or his claim upon its own merits. That claim cannot be enhanced by establishing, if such be the case, that the chosen object of the testamentary beneficence of the Deceased (in this case Veronica), if she herself had been omitted from such testamentary provision, would have failed in an application for provision. In this regard it is appropriate that I should set forth the following salutary admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124 at 137,

The jurisdiction under the Testators’ Family Maintenance Act [the statutory predecessor to the Family Provision Act ] is to provide for deserving persons according to their requirements, not to reward past services. This is sometimes overlooked and evidence concerning the present and probable future requirements of the applicant is subordinated to or submerged in evidence of past services to the testator. Allegations and denials concerning episodes in the past are then likely to become emphasised at the expense of evidence directed to the central issues in the case.

68 Further, consonant with the foregoing admonition of Windeyer J, it should be emphasised that an order for provision is not made as a reward for past services on the part of an applicant. Neither is an order for provision withheld as punishment for perceived bad conduct on the part of the applicant.

69 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 (the correctness of which test was affirmed in Vigolo v Bostin (2005) 79 ALJR 731) the Court must determine whether in consequence of the provisions of the will of the Deceased each of the Plaintiffs has been left without adequate provision for her or his proper maintenance.

70 The Deceased made his will on 11 May 2000, by which time he and Veronica had been married for almost 26 years. Whatever might have been the perceived shortcomings in the relationship between the Deceased and Veronica (and I am by no means satisfied that there were such shortcomings), the Deceased was sufficiently content with the nature of that relationship to make Veronica the chief object of his testamentary beneficence, indeed, to give to her the entirety of his estate apart from legacies totalling $20,000.

71 In determining whether, in consequence of the provisions of the will of the Deceased, either or both of the Plaintiffs has been left without adequate provision for her or his proper maintenance, it should recognised that, in the case of Kaye, she owns an unencumbered residence worth $285,000, a five year old motor vehicle, $35,000 in the bank and a superannuation entitlement of $104,000. Her financial situation is such that she has been enabled to give to her daughters amounts totalling $50,000. She is capable of working for 38 hours a week, earning a gross salary of $665 a week. She ceased employment only in order to be available for the hearing of the present proceedings. Although Kaye said that her residence requires some maintenance and repairs, she gave no evidence of the cost involved in those works, or of her capacity to meet those costs from her present assets.

72 In the case of Leonard, it will be appreciated that, first, he received considerable assistance from the Deceased in getting a start in life, especially with the purchase of his own residence at Coogee, the Deceased providing the necessary deposit, as well as the payment for legal costs and stamp duty, and provision of white goods. In the early 1980s the Deceased gave Leonard $6,000 to assist him in moving his residence from Coogee to Kingsgrove and $4,000 for the carpeting of the Kingsgrove property. He also made an interest free loan of $5,000 to Leonard (which loan has not yet been repaid), provided him with a motor car, and set up a trust fund for each of Leonard’s two children.

73 At the present time Leonard resides in an unencumbered house property worth $380,000. He owns a 1932 Ford motor vehicle worth $30,000 (which he stated to be an investment), as well as three other motor vehicles. He presently has $20,000 remaining of his uncle’s inheritance (which has diminished from the $70,000 he had in the bank at the time of the institution of the present proceedings). Leonard and his wife earn a total of about $3,500 net a month, whilst their expenses total about $2,000 a month. He offered no evidence of any particular need.

74 I am not satisfied that either Plaintiff has established that as result of the testamentary provisions of the Deceased she or he has been left without adequate provision for her or his maintenance. In this regard it should not be overlooked that under the terms of the Deceased’s will each Plaintiff will receive a legacy of $5,000.

75 The conclusions which I have just expressed are sufficient to dispose of the claims of each Plaintiff.

76 Nevertheless, even if (contrary to those conclusions) I were to have been satisfied that either or both of the Plaintiffs had been left without adequate provision for her or his maintenance, that conclusion must be approached in the light of any competing claims upon the testamentary bounty of the Deceased. The only such competing claim is that of Veronica. That competing claim was recognised by the Deceased, who by his will made Veronica the chief (almost the sole) object of his testamentary beneficence. Despite the assertions made by the Plaintiffs, I am satisfied that Veronica was a devoted and loving wife to the Deceased during their marriage, which extended over a period of almost 30 years. During the latter part of the Deceased’s lifetime and during the period of his declining health Veronica had all the responsibilities of a full-time carer. The competing claim of Veronica cannot enhance the entitlement of either or both of the Plaintiffs, although it may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiffs may otherwise have established.

77 Veronica gave evidence of some hearing and eyesight problems, although otherwise she is in good health. Her only assets consist of a cash management account of about $1,700 and a 30 year old motor vehicle (which is insured for $3,000). She manages to get by on her pension, together with some financial assistance from her nephew. She has liabilities approaching $20,000. On behalf of the estate she has made payments of about $23,000 (those payments being essentially for maintenance and outgoings for the Keating Street residence). The estate remains indebted to her for some $160,000, most of which debt is unlikely to be repaid to her.

78 The Deceased by his will gave to Veronica the chief asset in his estate, being the house property at Keating Street, which has a present value of about $1,200,000. Although that house property was the residence of the Deceased before he met Veronica, nevertheless Veronica made very significant and substantial financial and personal contributions towards the conservation and improvement of that property. In addition, Veronica enabled the Deceased to pursue his interest in horse breeding, by advancing him very considerable sums of money, including loans totalling $287,000, to her own financial detriment.

79 It will be appreciated that the practical consequence of any order for provision which might be made in favour of either or both of the Plaintiffs, would be the sale of the Keating Street residence.

80 I am not satisfied that Veronica in the latter part of her lifetime should be deprived of residing in what has been her home for more than 30 years, a residence to the rebuilding, improvement and conservation whereof and to the furnishing and beautification whereof (as well as of its gardens and surrounds) Veronica has made very substantial and significant financial and personal contributions, and for which Veronica clearly has a great affection.

81 Even if (contrary to the conclusions which I have already expressed) either or both of the Plaintiffs were to have established an entitlement to an order for provision, the competing claim of Veronica would totally extinguish such entitlement. But I would emphasise that I am not satisfied that either Plaintiff has established such an entitlement.

82 It follows, therefore, that the claim of each Plaintiff will be dismissed.

83 I make the following orders:

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

(2). I order that the Plaintiffs 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 Frank Gillings (“the Deceased”) the difference between the foregoing costs which he may recover from the Plaintiffs and the costs of the Defendant on the indemnity basis.

(4). The exhibits may be returned.

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