Evans v The Public Trustee in and for the State of Western Australia - [2005] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EVANS -v- THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA & ORS [2005] WASC 208

CORAM: MASTER SANDERSON

HEARD: 30 MAY 2005

DELIVERED : 16 SEPTEMBER 2005

PUBLISHED : 19 SEPTEMBER 2005

FILE NO/S: CIV 1676 of 2003

MATTER :Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
Intestate Estate of WILLIAM THOMAS EVANS late of 11 Mundford Street, North Beach, Perth, Western Australia, retired Gas Fitter (Dec)

BETWEEN: REBECCA BALAYON EVANS
Plaintiff
AND
THE PUBLIC TRUSTEE IN AND FOR THE STATE OF WESTERN AUSTRALIA
First Defendant
JANET EVANS
Second Defendant
DAVID EVANS
Third Defendant
PAULINE EVANS
Fourth Defendant
LEE ELIZABETH EVANS
Fifth Defendant

Catchwords:

Inheritance (Family and Dependants Provision) Act 1972 (WA) - Claim by spouse of deceased who died intestate - Turns on own facts

Legislation:

Inheritance (Family and Defendants Provision) Act 1972 (WA)

Administration Act 1903 (WA)

Result:

Will varied to increase widow's share of estate

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant             :     No appearance
Second Defendant         :     Mr G D Burgess
Third Defendant           :     Mr G D Burgess
Fourth Defendant          :     Mr G D Burgess
Fifth Defendant            :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Cullen Babington Hughes
First Defendant             :     No appearance
Second Defendant         :     Hammond Worthington
Third Defendant           :     Hammond Worthington
Fourth Defendant          :     Hammond Worthington
Fifth Defendant            :     Hoffmans

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Golosky v Golosky, unreported; CCA SCt of NSW; Library No 302134; 5 October 1993
Goodman v Windeyer (1980) 144 CLR 490
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11

Case(s) also cited:

Allardice v Allardice (1910) 29 NZLR 959
Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Coates v National Trustees, Executor & Agency Co Ltd (1956) 95 CLR 494
Kitson v Franks [2001] WASCA 134
Marks v Marks [2003] WASCA 297
Pontifical Society of the Propogation of the Faith v Scales (1962) 107 CLR 9
Re Allen (Dec), Allen v Manchester [1922] 41 NZLR 218
The Estate of Bridges (Dec) (1975) 12 SASR 1

MASTER SANDERSON: The plaintiff brings this action under the provisions of the Inheritance (Family and Dependants Provisions) Act 1972 (WA) ("the Act"). The plaintiff is the widow of William Thomas Evans (the deceased) who died on 31 January 1999. The deceased did not leave a Will. Letters of administration of the estate were granted to the Public Trustee on 10 January 2000. On 4 February 2003 the plaintiff filed an originating summons seeking leave to commence proceedings under the Act. On 10 June 2003 I granted the plaintiff leave to bring this action out of time. The present originating summons was filed on 17 June 2003.
By virtue of s 7(1)(a) of the Act the plaintiff is a person who qualifies to make an application for further provision out of the estate of the deceased. She was married to the deceased at the date of his death, albeit that they were separated. (The plaintiff disputes that she and the deceased were separated as at the date of his death. Nothing turns on this issue and it unnecessary for me to reach any concluded view on the matter). As the deceased died intestate, his estate is to be distributed according to the provisions of the Administration Act 1903 (WA). In other words, the estate is to be distributed according to law. Pursuant to the provisions of s 6(2) of the Act the Court "shall not be bound to assume that the law relating to intestacy makes adequate provision in all cases". Thus, the mere fact of an intestacy does not disqualify the plaintiff from making this claim.
The deceased was first married to Patricia Margaret Tingey on 15 September 1962. They separated after 16 years and were divorced after 22 years. There were three children of that marriage who are respectively the second, third and fourth defendants in these proceedings. The second defendant was aged 35 years at the date of death of the deceased and is presently 41 years of age. The third defendant was aged 32 years at the date of the death of the deceased and is presently aged 38 years. The fourth defendant was aged 25 years at the date of the death of the deceased and is presently aged 31 years. There was one child of the marriage of the deceased and the plaintiff. She is the fifth defendant. She was aged 12 years at the date of the death of the deceased and is currently aged 18 years.
The deceased married the plaintiff on 11 May 1986. As at the date of his death, they had been married for 12 years and 8 months. There had been one period of separation prior to the death of the deceased. Whatever may have been the nature of the relationship between the deceased and the plaintiff, there is nothing in the evidence to suggest that there was any conduct which might disentitle the plaintiff under s 6(3) of the Act.
Nothing further really needs to be said about the relationship between the plaintiff and the deceased. At the time the deceased married the plaintiff he was a gas fitter. He suffered a stroke in 1992 and did not return to work after that date. He was on social security benefits for 7 years prior to his death.
The deceased's estate consisted of a house at 11 Mundford Street, North Beach ("the property"). The plaintiff, the deceased and the fifth defendant had resided in the property since 1988. In the statement of assets and liabilities filed with the application for letters of administration the property was said to be worth $170,000. The statement listed other assets of the deceased to the value of $15,950.04. It would appear that the statement was in error. It included a Prudential life policy number 185/344 worth $6588.90 and a Tower Life Superannuation Plan No. 5,334,700 worth $4823.28. Neither the life policy nor the superannuation plan were assets of the estate. They were paid directly to the widow. Accordingly, the assets of the deceased's estate apart from the property amounted to just $4537.86.
The liabilities of the estate were said to amount to $18,503.78: see annexure "RBE7" to the affidavit of the plaintiff sworn 13 February 2003 in the action for leave to proceed out of time (CIV 1156/03). In addition to those debts there is a debt to the Public Trustee of 4 per cent of the value of the estate at the date of death. That is an amount of approximately $6800. Presently there may be further fees due to the Public Trustee which, although unquantified, are estimated at $10,000.
Since the date of the death of the deceased the plaintiff and the fifth defendant have resided in the property. They have not paid rent to the first defendant in its capacity as administrator of the estate. Pursuant to its obligations to distribute the estate the first defendant has initiated eviction proceedings against the plaintiff and the fifth defendant in the Joondalup Local Court. It was these proceedings which prompted the plaintiff to make an application for leave to bring an action under the Act out of time. None of the parties suggested that the plaintiff is indebted to the estate for rent consequent upon her occupation of the property for the last 6 years. Given the approach of the parties, this issue (if indeed it is an issue) can be put to one side.
It is clear from the above that the net value of the estate is dependent entirely upon the value of the property. There is no dispute between the parties that as at the date of death of the deceased the property was worth $170,000. In keeping with the trend of increasing property values within the metropolitan area, the property is now worth much more. There was no firm agreement between the parties as to precisely what the value of the property was as at the date of hearing. Appearing as annexures "RBE4", "RBE5" and "RBE6" to the plaintiff's affidavit of 23 May 2005 are three appraisals of the property from real estate agents. The values put on the property by these agents are respectively in the range of $390,000 to $420,000, $400,000 to $425,000, and $460,000 to $480,000. The plaintiff would eliminate the last of these appraisals as being outside the range of reasonable prices. She submits that the value of the property is around $400,000.
Appearing as annexure "JE2" to the affidavit of the second defendant sworn 26 May 2005 is a further appraisal of the property. This puts the value at $490,000. On behalf of the defendants it is said that this was a more realistic value of the estate.
In the absence of direct evidence it is difficult to arrive at a firm figure for the value of the property. It would have been more preferable if the parties could either have agreed a value or if there had been direct evidence from a valuer or valuers setting a value and explaining the reasons for that valuation. As it is, I am left to do the best I can with the evidence available. That evidence can be summarised in this way.
It is clear that there has been a substantial increase in the value of the property between the date of the filing of the statements of assets and liabilities and as at the date of the hearing. At a minimum the property is worth $390,000; at a maximum the property is worth $490,000. It is common ground that the house on the property is dilapidated and in need of repair. A reading of all the appraisals suggests that the value of the property is what is generally known as "block value". The property is subdivisible and other properties in the same street have been subdivided. Doubtless the availability of subdivision makes the property attractive to a broader range of purchasers than would otherwise be the case and consequently increases the value.
For the purposes of this case I am prepared to assume that the property has a value of $470,000. I accept that this is well towards the top of the range of appraisals provided by the plaintiff and slightly less than the appraisal provided by the defendants. In my view, it is a reasonable assumption given the state of the evidence.
Assuming then a value of the property of $470,000 and allowing for liabilities of the estate, as at the date of the hearing I would put the net value of the estate at $430,000. This assumes the agreed debts of the estate at $18,503.78, an amount owing to the Public Trustee of $6800 and a further $10,000 owing to the Public Trustee. I have then rounded the figures out making some allowance for unforeseen liabilities.
As matters stand at present, the estate of the deceased would be distributed pursuant to s 14 of the Administration Act. Pursuant to that section the plaintiff, as the widow of the deceased, would be entitled to the first $50,000 of the estate. She would then be entitled to one third of the residue of the estate, with the children of the deceased entitled in equal shares to the remaining two thirds.
As at the date of death of the deceased, his estate was valued at $149,234.08. (This figure is calculated by reference to the statement of assets and liabilities. The value of the property was $170,000 and the value of the other assets of the estate was $4537.86. That makes a total of $174,537.86. The liabilities of the estate taken from the statement of assets and liabilities were $18,503.78. In addition to that there was a debt to the Public Trustee for administering the estate of $6800. That is a total of $25,303.78). For the sake of convenience I will round this figure out to $150,000. It is also worthy of note that these figures are taken from the statement of assets and liabilities filed in support of the grant of letters of administration in January 2000. The letters of administration were granted slightly less than 12 months after the date of death of the deceased. On that basis it might be said that the figures do not disclose precisely the value of the deceased's estates as at the date of his death - no allowance is made for the increase in value of the property in the 12 months between the deceased's death and the preparation of the statement of assets and liabilities. This was not a point taken by any of the parties to the proceedings and while it may give a very slightly inflated value of the deceased's estate at the date of his death, it is, in context, not significant.
Assuming then a value of the deceased's estate at the date of his death of $150,000, the plaintiff would be entitled to $50,000, plus one‑third of $100,000. That would put her entitlement at $83,000 (in round figures). The four children of the deceased would then share in the remaining $67,000. That would mean an entitlement of $16,750 each (again using round figures).
As at the date of the hearing, the plaintiff would again be entitled to $50,000, plus one‑third of the remaining value of the estate, being approximately $135,000. Her total entitlement then would be approximately $185,000. The four children would then share $270,000, giving them an entitlement of approximately $67,000 each.
The way in which applications of this nature are to be approached was set out by Malcolm CJ on Bondelmonte v Blanckensee [1989] WAR 305. His Honour said (at [307]):
"On an application under this provision (s 7 of the Act) two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased: Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494. If that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executors and Agency Co Ltd (supra); Dun v Dun (1957) 99 CLR 325 at 331; Goodman v Windeyer (1980) 144 CLR 490."
Since the decision in Bondelmonte (supra) the High Court has had reason on a number of occasions to consider either the Act itself or provisions similar thereto. The most recent decision is Vigolo v Bostin [2005] HCA 11. In that case all of the Judges refer to the earlier High Court decision of Singer v Berghouse (No 2) (1994) 181 CLR 201, which in turn approved what was said by Malcolm CJ in Bondelmonte v Blanckensee (supra). In Vigolo (supra) Gummow and Hayne JJ, after referring to Singer v Berghouse, said (at 56):
"Their Honours (in Singer v Berghouse) went on to indicate that that description of the 'jurisdictional question' meant no more than that the court's power to make an order in favour of an applicant was conditioned upon the court first being satisfied of the state of affairs predicated in what in Western Australia is the opening passage of s 6(1), ending with the words 'made under this Act'".
Relevantly s 6(1) of the Act reads as follows:
"If any person … dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his Will, or the law relating to intestacy, or the combination of his Will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 (of this Act) …".
The question to be asked then is whether the distribution of the estate of the deceased on intestacy does in fact make adequate provision for the proper maintenance, support, education or advancement of the plaintiff. In this case there is no question of further education. The plaintiff is a mature woman who has not given any indication she intends to undertake further studies. So the jurisdictional question is whether, as at the date of death of the deceased, the distribution of the deceased's estate pursuant to the Administration Act makes adequate provision for the proper maintenance, support or advancement in life of the plaintiff. In Vigolo (supra) Gummow and Hayne JJ said the "correct approach" to the construction of the jurisdictional question was to apply the test set out by Gibbs J in Goodman v Windeyer (1980) 144 CLR 490 per Gibbs J at 502.
The words "adequate" and "proper" are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of it own general knowledge and experience of current social conditions and standards.
Turning to the evidence, there were numerous affidavits filed by the various parties. The plaintiff relied on three affidavits sworn (in CIV 1156/03) in support of the application for the extension of time. These affidavits were sworn on 13 February 2003, 10 March 2003 and 11 May 2003. In this action two further affidavits were sworn on 15 July 2003 and on 23 May 2005.
On behalf of the defendants, reliance was placed on two affidavits of Marlene Roxanne Cowan, a solicitor, sworn on 9 April 2003 and 5 June 2003 (in CIV 1156/03). Both of these affidavits had to do with matters pertaining to the grant of an extension of time and neither is relevant to this application. The second defendant relied on various affidavits sworn respectively 13 May 2003 (in CIV 1156/03), 26 August 2003 (this affidavit was filed but was re‑sworn on 3 December 2003 and re‑filed), a second one sworn on 3 December 2003, and 26 May 2005. The third defendant relies on four affidavits sworn 27 August 2003, 2 December 2003 and 3 February 2004 and 25 May 2005. The fourth defendant relies on three affidavits sworn on 29 August 2003, 2 December 2003 and 25 May 2005. The fifth defendant relies on three affidavits sworn 3 May 2003 (in CIV 1156/03), 24 July 2003 and 11 February 2005. Mercifully all of these affidavits are short and most of what is contained in each is irrelevant and can be put to one side. The evidentiary position which emerges from the affidavits and from cross‑examination of the deponents is relatively straightforward and uncomplicated. Before detailing the respective positions of the parties, however, I should say something about what each party seeks as the outcome of this application.
The plaintiff seeks a variation of the Administration Act distribution of the deceased to the effect that she should have the property absolutely. She does not want to move from the property and nowhere in her evidence does she seriously countenance a variation of the Will which would allow for sale of the property and her obtaining alternative accommodation. The second, third and fourth defendants maintain that the plaintiff has not satisfied the jurisdictional question. They say that she has not demonstrated that as at the date of the death of the deceased a distribution of the estate pursuant to the Administration Act would not adequately provide for her. As an alternative, if the jurisdictional question is determined in favour of the plaintiff, they say that there is alternative accommodation available which would suit the plaintiff better than her continuing to reside in the property. They say this accommodation is available to her for an amount less than the value of the property and that the residue of the estate ought be divided between the children of the deceased.
The fifth defendant supports the plaintiff in large measure, save that she says the plaintiff should receive a three‑quarter interest in the property and she should be allocated a one‑quarter interest. She is, in effect, making a claim under the Act in her own right. She is entitled to do this under the provisions of s 12(2) of the Act. That section is in the following terms:
"Where an application has been filed by or on behalf of any person, it may be treated by the Court as an application made on behalf of all persons who might apply, and as regards the question of limitation it is to be deemed to be an application on behalf of all persons on whom notice of the application is served and all persons whom the Court has directed shall be represented by persons on whom the notice of the application is served."

Turning then to the evidence, it is convenient to begin with the plaintiff. The position that emerges can be summarised in this way. The plaintiff is 48 years of age. She migrated to Australia as the deceased's fiancée in 1986. She became a naturalised Australian citizen in April of 1989. She speaks and understands English, although not without difficulty. Prior to the date of the death of the deceased the two survived on social security payments. After the death of the deceased she continued to receive unemployment benefit of $367.71 per fortnight: par 21 of the affidavit of 13 February 2003. In April, early May of 2003 the plaintiff was able to obtain employment on a part‑time casual basis at a mushroom farm in Wanneroo. She has maintained that employment. For the financial year ending 30 June 2004 her net income after tax was just under $20,000. Her income is supplemented by $104.50 per week which is a youth allowance paid to the fifth defendant and passed on by the fifth defendant to the plaintiff. In addition, the fifth defendant works as a shop assistant approximately 12 hours a week. From this she earns in the region of $200 per week which goes in part to assist the plaintiff. The plaintiff then has at present a net weekly income of something in the region of $500. As at the date of the death of the deceased, she had only the social security payment, plus earnings of $75 per week as a casual cleaner. In other words, as at the date of the death of the deceased, her income was around $420 per week.
At par 22 of her affidavit of 13 February 2003 the plaintiff set out her expenses. She put her recurrent weekly expenses at $260 per week. She says, in addition, she had to provide clothing, uniforms and the like for her daughter which amounted to $800 per annum. She was making payments on a loan incurred to purchase a computer for the fifth defendant and these payments amounted to $1068 per annum. Her life insurance payments were $336 per annum, her car insurance $204 per annum, her car registration was $500 and her water and council rates were around $1000 per annum. Not surprisingly, she said (at par 22), "I find it extremely difficult to cope on my weekly income."
The plaintiff's financial position has not really improved. In her affidavit of 23 May 2005 she says that the difference between her income and expenditure as at the date of the swearing of the affidavit was $62.12 per week: see par 13. She owed the local authority approximately $800 for rates. In the course of her oral evidence she said she was unsure how she would meet the obligation.
It was the plaintiff's position that the fact she did not receive the property on the death of the deceased was in and of itself enough to establish that the deceased did not make adequate provision for the proper maintenance support or advancement in life of the plaintiff. Of course, that submission has to be viewed against the background of the plaintiff's personal circumstances ‑ her limited education and relative lack of available educational opportunities, her duty to provide a home for the fifth defendant and her lack at any alternative source of support in the future. As I have indicated above, the plaintiff made no attempt to adduce evidence to show that as at the date of the death of the deceased if the property had been sold and she had received her entitlement, there was no satisfactory accommodation available.
Counsel for the plaintiff relied heavily on the decision of the court of appeal of New South Wales in Golosky v Golosky, unreported; CCA SCt of NSW; Library No 302134; 5 October 1993. This case involved a deceased who was, by any measure well off. By his Will, he left to his widow the respondent to the appeal a life interest in what was the former matrimonial home. He also left her a legacy of $150,000. The widow took proceedings under the New South Wales equivalent of the Act claiming that the provision for her was inadequate. At first instance, the master determined that she should have the former matrimonial home absolutely. He determined that the legacy of $150,000 was adequate and declined to order any increase. It was against that decision that the executors (the children of the deceased) appealed. In summarising the applicable principles Kirby P, as his Honour then was, said (at 12):
"A mere right of residence will usually be an unsatisfactory method of providing for a spouses [sic] accommodation to fulfil the foregoing normal presupposition (that is to say it is the duty of the testator to ensure a spouse is provided with a place to live appropriate to that which he or she has been accustomed to). This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just. See Moore v Moore, Court of Appeal, unreported, 16 May 1984, per Hutley JA at 2."
It was that statement of principal upon which counsel for the plaintiff placed great reliance. In fact in Golosky (supra), the Court of Appeal allowed the appeal and set aside the orders made by the Master. They varied the Will of the deceased by increasing the legacy payable to the widow from $150,000 to $350,000. They did away with the life interest in the former matrimonial home which had been given to the widow by the Will allowing the property to pass to the parties named in the Will without the encumbrance of the widow's life tenancy.
With respect to counsel, Golosky (supra) is not, in my view, of much assistance. It does set out what might said to be broad principles, which are uncontroversial. But factually it has no real parallels with this case. Indeed, very few of the decided cases are of assistance in this matter ‑ the fact situations vary too widely for direct parallels to be drawn. In every case, it is a matter of performing a balancing exercise based upon the facts particular to the parties involved.
On balance, I am satisfied that adequate provision was not made for the plaintiff by the laws governing intestatacy as at the date of the death of the deceased. In my view, it is of prime importance that the plaintiff was not left the property. It was the matrimonial home and clearly it is the environment in which she feels most comfortable. Given her background, the evident lack of support structures she was able to call upon and the need to provide for her daughter, in my view, anything less than her being entitled to the property given its value at the date of death amounted to inadequate provision. She, therefore, satisfies the jurisdictional test.
In reaching this conclusion, I am mindful as counsel for the second, third and fourth defendants pointed out that it may well be the case that adequate accommodation in the area or in other suitable areas may have been available and could have been acquired with the funds to which the plaintiff was entitled on intestatacy. It was further submitted, as the plaintiff had led no evidence in this regard, it was necessary to assume that such accommodation was available. Counsel submitted that the onus of proof rested with the plaintiff to establish that the provision for her was inadequate and she had simply failed to discharge that onus. There is some strength to that submission. In the end, it seems to me that the plaintiff's clear desire to remain resident in the property despite all the shortcomings that involves and all the difficulties in maintaining the property is sufficient to conclude that as at the date of the death of the deceased, she was not adequately provided for.
Having reached that conclusion, it is then a question of how the estate ought now be distributed. As I have indicated above, the plaintiff seeks an order that she be entitled to the property. It must be said it is very difficult to see how she will be able to retain ownership of the property even in the short term if the property were vested in her. There are debts owing by the estate to the Public Trustee, she is indebted to the local authority, the house is in need of maintenance and there is no indication on the evidence that the plaintiff's income will increase to allow her to meet the obligations she and the estate have to various creditors. The only real option appears to be to sell the property. Furthermore, the sale would have to take place in the short term. I would not want it to be thought that such a conclusion was paternalistic. The fact is that on behalf of the plaintiff there was no evidence led which sought in any way to explain how the plaintiff would be able to retain ownership of the property (assuming it were vested in her) faced as she is with significant debts. The conclusion that the property would need to be sold in the short term is based upon the evidence ‑ or lack of it ‑ led by the plaintiff.
It is appropriate at this point to consider the present circumstances of each of the defendants. In her affidavit sworn 26 May 2005, the second defendant puts her net assets as $157,079.12. In large measure, these assets are made up of her interest in the home in which she resides and an interest in an investment property. She puts her income per month at $2648.92 and her expenditure at $3368.97. In part, her negative monthly financial position is occasioned by an injury to her partner, which has prevented him from returning to work. As at the date of the swearing of her last affidavit, the second defendant's partner had just obtained employment and that may alleviate the second defendant's cash flow difficulties.
The third defendant is unemployed and is in receipt of social security benefits. He has virtually no assets or liabilities. He resides with his mother and pays her $180 per fortnight for board and rent.
The fourth defendant puts her net assets at $94,763.04. These assets are mainly made up of her interest in her home. She has a net monthly income of $970 and in her latest affidavit sworn 9 August 2005 puts her outgoings at $1201.32 a month. Her partner is limited by a back complaint and is only able to work part‑time. It is not entirely clear how she will overcome her cash flow deficit.
The fifth defendant is a student at Edith Cowan University. She is in the second year of a Psychology and Addition Studies Degree. The course lasts for 3 years and she intends to undertake further study. She anticipates that she will not conclude her studies before 2009. As I have indicated above, the fifth defendant has casual part‑time employment, which she uses to maintain herself. She has some assets and a HECS debt, which cancel each other out.
It is clear from the above, that each of the four children of the deceased would benefit from a distribution from the estate. It might perhaps be said that the second defendant is reasonably well placed; but even she has a cash flow deficit. In an ideal world, the estate of the deceased would have been more substantial and it would have been possible to make adequate provision for the plaintiff and for the four children of the deceased. But that is not possible. It is a matter of determining what is best to be done with the assets that are available.
It is clear that the bulk of the estate ought go to the plaintiff. She has need of accommodation and some funds should be available to her for contingencies. In my view, some provision should be made out of the estate for each of the children. The fifth defendant is clearly more vulnerable than the other children of the deceased but she is also likely to benefit eventually from the bulk of the estate going to the plaintiff. So in my view, she ought be treated equally with her siblings. Against that background, I would order that the distribution of the estate be varied in the following way.
The property should be sold and out of the proceeds of sale each of the children of the deceased ‑ that is the second through fifth defendants ‑ should receive $10,000. The debts of the estate should then be paid out of the residue together with the costs of all parties to this application. The residue of the estate ought be paid to the plaintiff to allow her to acquire alternative accommodation of her choice.
In reaching this conclusion, I have been mindful that there are properties available which on the face of it would seem to suit the plaintiff's needs. Details of these properties appear as Annexure "JE4" to the affidavit of the second defendant sworn 26 May 2005. I appreciate that the description of the properties is brief and there may well be aspects of these properties which mean they would not suit the plaintiff. But it is also clear that there is a wide range of houses and units available which are closer to the plaintiff's place of work and to the fifth defendant's university. Given that it is inevitable, in my view, that the property will have to be sold, it seems to me the orders that I propose would do justice between the parties.
I will hear the parties as to the precise form of orders.