Cobb v Cobb
[2002] NSWSC 946
•11 October 2002
CITATION: Cobb v Cobb [2002] NSWSC 946 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 4597/00; 2114/01 HEARING DATE(S): 16, 17 July 2002 JUDGMENT DATE: 11 October 2002 PARTIES :
Barbara Anne Cobb (Plaintiff 4597/00)
Kay Cobb (Plaintiff 2114/01)
Michael Roy Cobb (Defendant)JUDGMENT OF: Master McLaughlin
COUNSEL : M. Willmott (Plaintiff 4597/00)
J. Wilson (Plaintiff 2114/01)
W. Haffenden (Defendant)SOLICITORS: Eric Butler Solicitors (Plaintiff 4597/00)
Parke Maher Solicitors (Plaintiff 2114/01)
Campbell Paton & Taylor Solicitors (Defendant)CATCHWORDS: Succession - Family Provision - Claims by widow and by adult daughter - Adult daughter does not pursue her claim, so long as her interest under the will is not eroded by claim of widow - Financial and material circumstances of widow - Effect of will is to require widow to reside in a house property which was not her home during the marriage and is in a location with which she has no ties and is uncongenial to her - Whether widow has been left without adequate provision for her proper maintenance - Competing claims of the beneficiaries. LEGISLATION CITED: Family Provision Act 1982 CASES CITED: Luciano v Rosenblum (1985) 2 NSWLR 65
Singer v Berghouse (1994) 181 CLR 201
White v Barron (1980) 144 CLR 431DECISION: See paragraph 78.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 11 October 2002
4597/00 BARBARA ANNE COBB -V- MICHAEL ROY COBB
2114/01 KAY COBB -V- MICHAEL ROY COBB and BARBARA ANNE COBB
JUDGMENT
1 MASTER: These are two separate proceedings under the Family Provision Act 1982.
2 By summons 4597 of 2000, filed on 13 November 2000, the Plaintiff Barbara Anne Cobb claims an order for provision for her maintenance, education and advancement in life out of the estate of her late father, Roy Stimpson Cobb (to whom I shall refer as “the Deceased”).
3 By summons 2114 of 2001, filed on 9 April 2001, the Plaintiff Kay Cobb claims an order for provision for her maintenance, education and advancement in life out of the estate of the Deceased, who was her husband at the time of his death.
4 The claim of Barbara Anne Cobb has been resolved, subject to the outcome of the claim of Kay Cobb. Barbara is agreeable to retain her interest under the will of the Deceased; that is, she now no longer claims any additional provision out of the estate of her late father. But she opposes any order in favour of her stepmother, Kay Cobb, which would have the effect of eroding the provision made for Barbara by the will of the Deceased.
5 It is appropriate here to record, however, that on 28 August 2001 orders were made by consent that the two sets of proceedings be heard together, that evidence in the one be evidence in the other, and that Michael Roy Cobb be authorised to act as the only executor of the estate and to represent the estate in proceedings 4597 of 2000.
6 The Deceased died on 7 November 1999 (aged eighty-eight, he having been born on 20 October 1911). He left a will dated 25 January 1996, probate whereof was on 12 April 2000 granted to Michael Roy Cobb and Barbara Anne Cobb, the executors named in such will (who are the Defendants in proceedings 2114 of 2001, and the first of whom, Michael Roy Cobb, is the Defendant in proceedings 4597 of 2000, brought against the estate by his sister and co-executor, Barbara Anne Cobb).
7 The assets of the estate included three separate pieces of rural property, each situate near Lyndhurst (the respective values of which are disclosed in the Inventory of Property as being $228,700, $82,500 and $128,500); a house property at 4 Regency Place, Orange (having an estimated value of $135,000); household furniture and effects ($8,700); Holden Commodore sedan motor vehicle (1990 model) ($6,000); money in various bank accounts and on term deposit accounts (totalling a little over $52,000); interest in partnership and joint venture (totalling a little over $73,000); and indebtedness of the First Defendant to the Deceased, by way of loan ($81,315).
8 At the hearing it was noted that it was agreed between the parties that the present value of each of the foregoing pieces of real estate is as follows:
- 4 Regency Place, Orange - $155,000
Burkeville - $340,000
Twaddles - $160,000Silent Dale - $90,000
9 By his will the Deceased gave one of the rural properties (that known as Twaddles) to his grandson, Nicholas Michael Stuart Cobb, subject to him attaining the age of twenty-five years; gave to his wife Kay Cobb the house property at 4 Regency Place, Orange and his sedan motor car; gave to his daughter Barbara Anne Cobb the rural property known as Silent Dale, together with all livestock depasturing thereon at the time of his death, and the sum of $30,000; gave to his son Michael Roy Cobb and his daughter Barbara Anne Cobb the proceeds of a GIO life policy; and gave the residue, after payment of debts, funeral and testamentary expenses, to Michael Roy Cobb absolutely.
10 In the light of the attitude expressed by the Plaintiff in proceedings 4597 of 2000, the hearing before me proceeded upon the claim by the Plaintiff widow in proceedings 2114 of 2001.
11 The Deceased had been married twice. His married his first wife, Daphne (née Burke) in 1932. Of that marriage were born two children, being Barbara Anne (who was born on 19 July 1933 and is presently aged sixty-nine) and Michael Roy (who was born on 16 March 1945 and presently is aged fifty-seven). Mrs Daphne Cobb died on 4 July 1985.
12 The Deceased married his second wife, Kay Cobb, on 12 November 1993. (I shall hereafter in this judgment refer to Mrs Kay Cobb as “the Plaintiff” or “Kay”.)
13 The Plaintiff was born on 12 January 1933, and is presently aged sixty-nine. No children were born to the marriage of the Plaintiff and the Deceased.
14 The Plaintiff had originally met the Deceased about forty years ago and they remained friendly for a number of years. Subsequently they renewed acquaintance in July 1993, and they married some four months later.
15 The Deceased was the Plaintiff’s third husband. At the time of her marriage to the Deceased the Plaintiff was in receipt of a pension. She had been a member of the nursing profession throughout her working life, and had retired in February 1992 as Director of Nursing at a nursing home in Brisbane. The Plaintiff was residing on Bribie Island in Queensland at the time when she renewed acquaintance with the Deceased. She moved to the Deceased’s rural property Burkeville at Lyndhurst in October 1993, several weeks before their marriage. Throughout the marriage the Plaintiff and the Deceased resided on Burkeville, although the Plaintiff retained ownership of her Bribie Island residence. Until 1997 it was the practice of the Plaintiff and the Deceased to holiday in Queensland at that residence. However, when the Deceased’s health began to fail in 1997 they ceased going to Bribie Island, and the Plaintiff leased that property from January 1998.
16 At the time of her marriage the Plaintiff’s assets consisted of her Bribie Island property and a motor vehicle. She sold that motor vehicle in 1994 for $11,000.
17 In 1994 and again in 1999 the Plaintiff, at the request of the Deceased, advanced moneys to him to assist in conducting his rural estates. The first amount, being $5,000, was subsequently repaid by the Deceased. The second amount was $8,000, and was not repaid by him.
18 Throughout the marriage the Plaintiff at various times paid health insurance from her own funds.
19 In March 1994 the Deceased was diagnosed as suffering from an aortic aneurism. In consequence he was unable to perform any heavy lifting. The Plaintiff performed substantial physical work upon the rural property Burkeville, including splitting and carrying wood, carrying water to trees during drought, mowing lawns and digging in the garden. (It should, however, be recorded that the extent of those activities performed by the Plaintiff was disputed by the Defendant.)
20 In 1998 the Deceased suffered a cerebral haemorrhage. Upon his discharge from hospital all responsibility for his nursing and personal care (including toileting and showering) devolved upon the Plaintiff. In April 1999 and again in May 1999 the Deceased suffered from attacks of gout, which resulted in his being confined to a wheelchair.
21 The evidence discloses that throughout the six years of their marriage the Plaintiff was a devoted and loving wife to the Deceased, and that the chief responsibility for the Plaintiff’s welfare after his health began to decline in 1994 fell upon the Plaintiff.
22 After the death of the Deceased the Plaintiff remained in residence in the homestead at Burkeville until May 2002. Since that time she has resided in rented accommodation at O’Connell. The Plaintiff’s mother, who is presently aged ninety-two, resides nearby in a retirement village at Carcoar. However, for reasons to which I shall later refer, it is the desire of the Plaintiff and her mother to remove to the Maitland area.
23 It is appropriate here to set forth the financial and material circumstances of each of the other beneficiaries named in the will of the Deceased, being Barbara Anne Cobb and Michael Roy Cobb (the two children of the Deceased) and Nicholas Michael Stewart Cobb (grandson of the Deceased, who is the son of Michael Roy Cobb).
24 Barbara Anne Cobb was born on 19 July 1933, and is presently aged sixty-nine. She has been married twice, each marriage ending in divorce. Four children were born to Barbara (one died in infancy). Her three surviving children are all adults and are not dependent upon her. Barbara is in receipt of an age pension, presently in an amount of $370 a fortnight. Her assets consist of a house property at Corlette (having an estimated value of $160,000); a new Toyota motor car (for which she paid $21,000); personal property ($5,000); furniture and household items ($14,000). Barbara’s liabilities consist of three personal loans (one, for $9,000, being in respect of her motor car, and the others being in amounts of $7,116 and $1,500). Barbara estimates that her current living expenses total $18,120 a year. The difference between her annual income ($9,302) and that expenditure is made up by assistance which she receives from time to time from her adult daughters.
25 Barbara suffers from diffused degenerative disease, in respect of which surgery has been recommended. She has great difficulty in lifting or bending. She also suffers from kidney problems, and from the consequences of a bowel cancer operation in 1986. It is necessary for her to undergo annual colonoscopies, blood tests and mammograms, for which she must travel to Sydney once a year. Medical reports in respect to Barbara’s condition were placed in evidence.
26 Barbara has resided in her present residence at Corlette since 1989. The location is suitable for her, and she has good friends and neighbours in that area. However, the house itself, which is constructed on three levels, is unsuitable for her medical and physical condition, because of the many steps which she must negotiate therein. It is her desire to dispose of her present residence and to purchase a ground floor villa or townhouse. Evidence was placed before the Court concerning the costs of such accommodation in the Corlette area. Barbara also requires a replacement motor vehicle as well as replacement of various household electrical items.
27 As has already been recorded, Barbara now no longer claims any additional provision out of the estate of her late father. However, she opposes any order being made in favour of her stepmother, the Plaintiff, Kay Cobb, which would have the effect of eroding the provisions made for Barbara by the will of the Deceased. That is, Barbara wishes to retain the benefits given to her by her father’s will, those benefits being the gift of the rural property known as Silent Dale, together with all livestock depasturing thereon at the time of the death of the Deceased, and the legacy of $30,000.
28 The circumstances in which Barbara no longer claims any additional provision out of the estate of the Deceased are set forth in her affidavit of 18 June 2002. In that affidavit she refers to the fact that the proceedings instituted by her stepmother, Kay Cobb, were not commenced until 9 April 2001, that being five months after Barbara instituted her own proceedings on 13 November 2000.
29 The Defendant, Michael Roy Cobb, was born on 16 March 1945, and is presently fifty-seven years of age.
30 Michael, who graduated in veterinary science from the University of Sydney, practised as a veterinarian from 1969 until 1984. During school and university vacations Michael worked with his father upon the three rural properties which the Deceased owned in the vicinity of Lyndhurst, being the properties Burkeville, Silent Dale and Twaddles. During that period Michael entered into a share farming agreement with his father in September 1980.
31 In December 1984 the Defendant was elected to the House of Representatives in the Parliament of the Commonwealth. He remained a Member of Parliament until September 1998. At the time when he commenced his parliamentary career the Defendant owned a rural property Woodview near Lyndhurst, and was also assisting the Deceased in running the three properties at Lyndhurst. The Defendant arranged that an employee, Ken McKenzie, should assist the Deceased upon the three properties at Lyndhurst, as well as working for the Defendant himself on his property known as Woodview. The Defendant paid the totality of Mr McKenzie’s wages and other remuneration, although, upon the Defendant’s estimation, Mr McKenzie spent in excess of seventy-five percent of his time conducting the properties of the Deceased and no more than twenty-five percent of his time in conducting the Defendant’s own property.
32 Throughout the period whilst he was in Parliament the Defendant continued to assist the Deceased in general management decisions relating to the conduct of his various rural properties. Throughout his parliamentary career and after he ceased to be a Member, the Defendant maintained a close and affectionate relationship with the Deceased.
33 The Defendant has been married four times (twice to the same wife), each marriage terminating in divorce. The Defendant has four children, all adults, the youngest being Nicholas, who is named a beneficiary in the will of the Deceased.
34 Since leaving Parliament in September 1998 the Defendant has been residing by himself at Woodview. He has no intention of attempting to resume his profession as a veterinarian. His present occupation is that of a farmer.
35 Woodview consists of 396 acres, on which the Defendant runs about fifty to fifty-five cows and replacement heifers. The homestead on Woodview is about eighty years old, and is in need of repairs and restoration.
36 At the present time the Defendant is also working Burkeville with approximately thirty five cattle and their offspring, and is working Twaddles with approximately twenty-five cattle.
37 The Defendant’s assets consist of Woodview (to which an estimated value of $240,000 is attributed); cattle ($50,000); motor car ($5,000); personal/furniture ($5,000); cattle on another property ($25,000); Yamaha four wheel farm bike ($8,200). The Defendant’s liabilities consist of a debt to the St George Bank in respect of a personal loan ($100,000); debt to Dalgetty Westfarmers ($50,000); debt in respect of the Yamaha farm bike ($8,000); loan from Deceased ($80,000); indebtedness to Ken McKenzie in respect of long service leave and holiday pay ($10,000). The foregoing liabilities of the Defendant total $248,000.
38 The Defendant estimates that the gross annual income earned from the three properties, Woodview, Burkeville and Twaddles (which are worked together), totals $82,800. (It will be appreciated that under the will of the Deceased (clause 1(b)) the Defendant is entitled to the occupation and use of Twaddles until Nicholas attains the age of twenty-five.) The Defendant further estimates that the expenses relating to his rural properties total almost $97,000, whilst his personal expenses total $27,550. The Defendant receives superannuation as a former Member of Parliament in an amount of $38,900 a year.
39 Nicholas Cobb, grandson of the Deceased and son of the Defendant, was born on 17 October 1982 and is nineteen years of age. He was born to the marriage of the Defendant and the Defendant’s second and fourth wife Barbara (née Brennan).
40 Nicholas is currently enrolled in his second year of a Bachelor of Information Technology/Economics degree at the Australian National University in Canberra (that being a four year course). Nicholas’ assets are modest, consisting of a computer (to which he attributes an estimated value of $500), personal effects and books, and a motor vehicle (which he purchased in early 2002 for $1,700). His income is about $547 a fortnight from Centrelink, the major part of that amount ($428) being part of a student supplementary loan of $5,235, which he has obtained through Centrelink, and which he must repay when he completes his university course. Nicholas also receives $6,000 a year from his father to assist in his general living and university expenses.
41 Nicholas’ fees are covered by the Higher Education Contribution Scheme (HECS) which he will be required to repay after he has completed his degree. Those fees are in an amount of between $5,000 and $6,000 a year. It is the understanding of Nicholas that when he completes his four year course he will need to repay an amount of between $20,000 and $24,000 through the HECS.
42 Nicholas presently resides in Bruce Hall, a hall of residence of the Australian National University. His total fortnightly expenses (including accommodation in Bruce Hall, food, university necessities and motor vehicle expenses) are in an amount of $576. Nicholas supplements the income which he receives from Centrelink by casual employment from which he receives $60 to $100 every three to four weeks.
43 It is in the light of the foregoing evidentiary material that the Court must proceed to a consideration of the claim of the Plaintiff Kay Cobb.
44 I have had the benefit of receiving written submissions and chronologies from Counsel for the respective parties. Those submissions and chronologies will be retained in the Court file.
45 The Plaintiff as the widow of the Deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. It will be appreciated that each of the Plaintiff Barbara Anne Cobb and the Defendant is also an eligible person, each being such, as a child of the Deceased, within paragraph (b) of the foregoing definition.
46 Although Nicholas receives a significant benefit under the will of his grandfather, it is not suggested, either by Nicholas himself or by the Defendant as executor of the estate, that Nicholas is an eligible person. There is no suggestion that Nicholas was ever totally or partly dependent upon the Deceased. Indeed, the affidavit of Nicholas sworn on 30 April 2002 does not address itself to the nature of the relationship between Nicholas and his grandfather.
47 In calculating the value of the estate available for distribution account must be taken of the costs of the present proceedings. Irrespective of the outcome of the claim of the Plaintiff, the Defendant executor is entitled to an order that his costs be paid out of the estate of the Deceased. Further, in the event that the Plaintiff be successful in her claim, she also will be entitled to an order that her costs be paid out of the estate. It has been estimated on behalf of the Plaintiff Kay Cobb that her costs will total about $30,000. It is estimated on behalf of the Defendant that the costs of the estate of both sets of proceedings will total about $51,000. Further, it is estimated on behalf of the Plaintiff Barbara Anne Cobb that her costs will total $45,000. The resolution of the claim of the Plaintiff Barbara Anne Cobb includes an order that her costs in the sum of $35,000 will be paid by the Defendant out of the assets of the estate.
48 In the event that all the foregoing costs be paid from the assets of the estate, the amount available for distribution will be reduced by about $116,000.
49 There has been a partial distribution of the estate, as follows. The Holden Commodore sedan motor vehicle has been transferred to the Plaintiff Kay Cobb, who has subsequently used that vehicle as a trade in on the acquisition of the motor vehicle which she presently owns.
50 Cattle upon Silent Dale at the date of the death of the Deceased, together with (as I understand it) progeny subsequently born to such cattle, have been delivered to the Plaintiff Barbara Anne Cobb (who subsequently sold them for $21,000). The propriety of this purported partial distribution by the Defendant was challenged during the course of the Defendant’s cross-examination at the instance of the Plaintiff Kay Cobb.
51 Apart from the Orange residence and the three rural properties, the present assets of the estate include livestock (having a present estimated value of almost $138,000) and furniture and machinery (having an estimated value of $15,000).
52 The present value of the estate’s interest in the partnership between the Deceased and Kay Cobb and in the joint venture between the Deceased and Michael Cobb did not emerge with clarity from the evidence. However, it was the evidence of David John Pilcher, accountant (whose report dated 27 May 2002 was in evidence), that Kay Cobb is indebted to the partnership in the sum of $61,134.29.
53 At the present time the Plaintiff has the following assets:
- 85 Fairway Avenue, Woorim (upon Bribie Island), of which the present value was agreed between the parties to be $210,000
1998 Subaru Liberty motor car - $16,000
Furniture, jewellery and personal effects - $2,100Reliance Credit Union - $400
54 The Plaintiff has debts totalling $10,000 owing to her former husband and to her son-in-law.
55 The Plaintiff receives an age pension of $300 a fortnight. From the property at 4 Regency Place, Orange she receives rent of $170 a week and from her Bribie Island property she receives rent of $180 a week. That is, the total weekly income of the Plaintiff is $500.
56 It is the present desire of the Plaintiff to live in the Maitland area, where her two daughters, her son and her grandchildren presently reside. Evidence was given of various residential properties available in the Maitland area, at prices of about $200,000. If the Plaintiff acquires a property costing about that amount, stamp duty will be about $5,500 and legal costs associated with such a purchase will be about $2,500. The Plaintiff will also have to meet relocation expenses. Since the Plaintiff does not currently own furniture or furnishing, any future residence acquired by her will require to be furnished. There was no evidence of the cost involved in furnishing such a new residence.
57 Since the death of the Deceased the Plaintiff has no ties or connections with the Orange area. She does not desire to reside in the house at Regency Place, Orange. If that property is sold for its present valuation, then after payment of legal costs and associated expenses it is estimated on her behalf that the Plaintiff will receive $148,000. That figure would result in a shortfall of about $62,000 less than the cost of the Plaintiff relocating from Orange to Maitland.
58 It is in the context of the foregoing financial and material circumstances of the Plaintiff and of the two children of the Deceased (who each has a competing claim to that of the Plaintiff upon the bounty of the Deceased and who each, as is also Nicholas, is a chosen object of the testamentary beneficence of the Deceased) that the Court must proceed to a consideration of the claim of the Plaintiff.
59 In performing the two stage exercise identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 per Mason CJ, Deane and McHugh JJ, it is firstly necessary to establish whether the Plaintiff has been left without adequate provision for her proper maintenance and advancement in life.
60 To the extent to which his assets enable him to do so, it has been said that a testator should provide his widow with security of residence, an income to live at a standard no less than that which she enjoyed during the lifetime of the testator and a sum to meet unexpected contingencies (Luciano v Rosenblum (1985) 2 NSWLR 65 at 69).
61 It is obvious that the Deceased attempted to make provision for the Plaintiff by giving to her an unencumbered property at Orange. But the Plaintiff does not have any links in the Orange area. Her immediate family live in the Maitland area. The Plaintiff wishes to relocate to Maitland, where she proposes to reside with her aged mother.
62 The residence in which the Plaintiff lived with the Deceased was the homestead located upon Burkeville. It will be appreciated that the Deceased by his will gave that property to the Defendant.
63 By giving to the Plaintiff an unencumbered residential property in a location in which the Plaintiff had never previously resided, where she has no friends, and with which she has no ties the Deceased did not, in my view, make adequate provision for the residence of the Plaintiff. The Plaintiff should be entitled to choose the location in which she wishes to reside, rather than being forced to live in a location where she does not wish to reside. To the extent that by the terms of the will the Plaintiff is, in effect, being required to reside, not in the residence which was her home throughout the six years of her marriage to the Deceased, but in a location neither congenial to her nor suitable to her wishes and circumstances, I am satisfied that the Plaintiff has been left without adequate provision for her proper maintenance.
64 The evidence discloses that the Plaintiff cannot merely exchange the Orange residence for an appropriate residence in the Maitland area.
65 It is not appropriate to suggest that a widow in the situation of Kay Cobb should be required to resort to her own capital in order to satisfy her need for adequate provision for her proper maintenance (see White v Barron (1980) 144 CLR 431 at 457 per Wilson J).
66 I am satisfied that the Plaintiff has established an entitlement to an order for provision which will have the effect of enabling her to relocate to a residence at Maitland of the nature which I have described (the total cost of acquisition of such a residence and relocation being about $210,000). If there be a shortfall of about $62,000 between the foregoing cost and the net proceeds of the sale of the Orange Residence, then it is appropriate that the Plaintiff receive an amount representing such shortfall.
67 In the light of the fact that the alleged indebtedness of the Plaintiff to the partnership between herself and the Deceased in an amount of about $61,000 was an indebtedness in respect to arrangements which were purely for the financial benefit of the Deceased and for no benefit to the Plaintiff, it is not appropriate that the Plaintiff should be required to bear the liability of that debt to the estate. Were she required to pay such a debt, then an order for provision in respect to the house property of the nature which I have just described would be rendered nugatory. Either an order should be made forgiving the debt, or the Plaintiff should receive an amount sufficient to discharge that debt.
68 It is not entirely clear, however, whether the Plaintiff can be regarded as having any continuing interest in the partnership which existed between herself and the Deceased during his lifetime. That is, it is not clear whether, in the event that the indebtedness of the Plaintiff to the partnership with the Deceased be discharged, the Plaintiff will then be entitled to a one half share in the partnership. For that reason, therefore, I consider that the appropriate course to be adopted is that, rather than award to the Plaintiff a legacy which will incorporate a component equivalent to the Plaintiff’s indebtedness to the partnership, I should make an order the effect of which would be to forgive any indebtedness owed by the Plaintiff to the partnership which subsisted between herself and the Deceased at the time of the death of the Deceased.
69 I propose, therefore, that the Plaintiff should, in addition to the benefits given to her by the will of the Deceased, receive the sum of $62,000, to meet the foregoing shortfall in respect to her accommodation, and that, in addition, she should receive a modest fund to meet unexpected contingencies and to go some way towards the acquisition of furniture and furnishings for her new residence. I consider that an appropriate amount for such fund would be $30,000.
70 The Plaintiff has through her Counsel submitted that she should have a right to the income from the Orange property up to the date of payment of an appropriate legacy to her, and that she should receive such an appropriate legacy. It seems to me, however, that the preferable way in which the benefits of the nature which I have outlined by way of provision for the Plaintiff should be implemented would be by the Plaintiff retaining ownership of the Regency Place property, and thus being able to continue to receive the income from that property until she disposes thereof, and by her receiving a legacy which would consist of the following components: the foregoing shortfall between the net value of the Orange property and the costs of acquiring and relocating to a residence in Maitland ($62,000), and a relatively small amount to provide a fund to meet unexpected contingencies and to assist in the acquisition of furniture and furnishings ($30,000). Thus the appropriate legacy which the Plaintiff should receive would be in a total amount of $92,000. The Plaintiff would then be able to dispose of the Regency Place property at her convenience, and to continue to receive the income from that property so long as it remains in her ownership. The gift to the Plaintiff of the Deceased’s sedan motor car should not be disturbed.
71 The next question which the Court must consider is whether, in the light of the competing claims of the children of the Deceased and of the grandson of the Deceased, the foregoing proposed additional provision for the Plaintiff should be reduced, or even extinguished.
72 I have already referred to the attitude adopted by the Plaintiff Barbara Anne Cook, and her desire that the benefits given to her by the will should be preserved and should not be eroded by any order for provision in favour of the Plaintiff Kay Cobb. I am in agreement that the financial and material circumstances of Barbara are such as entitle her to retain unaffected the benefits given to her by the will.
73 The consequence of the view which I have just expressed is that the additional provision for Kay Cook would need to be borne either in its entirety by the residue – that is, from that part of the estate which under the terms of the will passes to the Defendant – or, partly by the residue and partly by one or both of Burkeville and Twaddles, or in its entirety by those two properties. Apart from the various pieces of real estate (each of which is subject to a specific gift by the will) and apart from the interest of the estate in the partnership with Kay Cobb (whose indebtedness to which under the order proposed in her favour will be extinguished) and the interest of the estate in the joint venture with the Defendant and the entitlement of the estate in respect to the indebtedness to it of the Defendant, the assets which comprise residue (being essentially livestock having a present value of almost $138,000, together with furniture and machinery worth about $15,000) are barely sufficient to meet the costs of the parties of the present proceedings, together with the legacy of $30,000 to Barbara Anne Cobb.
74 The practicalities of the situation thus are that the additional benefit which I propose should be given to Kay Cobb must be met from assets which would otherwise pass to Michael and to his son Nicholas. Whilst neither of those beneficiaries can be regarded as being in affluent circumstances, and whilst I recognise that they are both chosen objects of the testamentary beneficence of the Deceased (Michael being the chief such object), and whilst Nicholas is a young man who has his way to make in life, nevertheless I consider that the properties Burkeville and Twaddles left respectively to those beneficiaries are assets of sufficient value, firstly to meet the additional benefit to be given to the Plaintiff, and, secondly, to enable the Defendant and his son still to retain a significant interest in those two properties. It should also be recognised that, quite independently of the estate and his interest therein, Michael is the owner of Woodview.
75 In my conclusion, the competing claims of the Defendant and Nicholas are not such as would have the effect of reducing, let alone extinguishing, the order for provision an entitlement to which I consider the Plaintiff has otherwise established.
76 It seems to me, in those circumstances, that it is appropriate that the additional benefit to which I consider the Plaintiff Kay Cobb has established an entitlement should be borne equally by the assets consisting of Burkeville (which under the will passes to the Defendant) and Twaddles (which under the will passes to Nicholas).
77 The foregoing orders which I have indicated I propose to make in proceedings 2114 of 2001 will allow orders to be made by consent in proceedings 4597 of 2000, along the lines that those latter proceedings be dismissed, with appropriate costs orders in favour of the Plaintiff and the Defendant therein.
78 Accordingly, in proceedings 2114 of 2001 I make the following orders:
(1). I order that, in addition to the benefits given to her by clause 4(a)(i) of the will of the late Roy Stimpson Cobb (“the Deceased”), the Plaintiff receive a legacy in the sum of $92,000, such legacy not to bear interest if paid on or before 11 January 2003, and if not so paid to bear interest at Supreme Court rates, the payment of such legacy and any such interest thereon to be borne equally by those assets of the Deceased being the rural properties known as Burkeville and Twaddles and to be a charge upon each of those properties.
(3). The exhibits may be returned.(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
79 I note that proceedings 4570 of 2000 have been settled on the basis that the summons be dismissed and that the costs of the Plaintiff in the sum of $30,000 and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. The matter may be listed by arrangement before myself for the making of formal orders.
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