Fielder v Booker

[2001] NSWSC 981

CITATION:	Fielder v Booker [2001] NSWSC 981 revised - 16/11/2001
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2496 of 2000
HEARING DATE(S):	30/10/01
JUDGMENT DATE:	9 November 2001
PARTIES :	Anne Marie Fielder v Lynette Booker & John Palmer - Estate of Frederick William Palmer
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr G. Rundle for plaintiff Mr J. Wilson for defendants
SOLICITORS:	Connah, Stead & Co for plaintiff Willis & Bowring for defendants
CATCHWORDS:	Family Provision. Application by a daughter who had been estranged from her father for most of her life. Attempted re-establishment of contact by he daughter which was rebuffed by the deceased. Held a small legacy was appropriate.
DECISION:	Paragraph 35

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of Frederick William Palmer who died on 26 June 1999. The deceased was survived by three children and a stepdaughter. The plaintiff is one of his three children. The deceased made his last will on 26 June 1992 in which he left the whole of his estate to his second wife and in default to be held for his daughter Lynette Booker, his son John Palmer and his stepdaughter Jan O’Connor. The deceased’s wife predeceased him and it is apparent that the plaintiff takes no interest under the will of the deceased. The deceased left a letter in which he set out his reasons for making no provision. As the relationship between the plaintiff and the deceased is the central matter at issue in these proceedings it is useful to note what the deceased said at this stage. In a letter dated 26 May 1992 he said:-

”The reasons for Anne, my daughter, not being a beneficiary in my will are:
Although I sent maintenance to help support Anne until she attained the age of 16 she, in attaining a responsible age and living with her mother and stepfather, changed her name to theirs – “Hill”.
Furthermore, Anne did not communicate with me since 1972 or thereabouts, except for one short phone call during which she called me “Fred”, which I took umbrage to – the reason for the call remains a mystery.
I and my wife were not invited to her wedding, nor informed of same, and to this day do not know her married name.
She has three children (my grandchildren) and never informed me of their births: I have never seen them. Have no idea of her address, nor have I ever known same.
Have never maintained or in any way supported her since she was sixteen.
My maiden aunt and I reared her brother and sister. I did not re-marry until those two were married.”

2   The deceased left his house at Maroubra, insurance policies and a number of shares giving an estate of $698,892. There have been realisations in the estate and distributions to the three beneficiaries. The present assets remaining in the estate are shares and a term deposit totalling $160,770.96. The costs the plaintiff has incurred to date are said to be $45,000 and those of the defendants $35,000.

3   Distributions of $180,000 each have been made to the three residuary beneficiaries.

4   I turn to history of the family with emphasis on the relationship between the plaintiff and the deceased. Lynette Booker a child of the deceased was born on 22 April 1949. Her brother, John Palmer, was born on 7 December 1950 and the plaintiff was born on 11 February 1954. Early in 1954 about five months after the birth of the plaintiff, the plaintiff’s mother and the deceased separated. The plaintiff went to live with her mother and the plaintiff’s sister Lynette and brother John eventually went to live with their father. The plaintiff’s father and mother were divorced at a later stage. In1962 the plaintiff’s mother married Charles Hill. Between this time and 1977 the plaintiff lived with her mother and stepfather apart from one period of six months in 1970. The plaintiff has no memory of her father prior to a meeting which she had with him in 1968. At that stage she was 14 years of age. Apparently that meeting which was between the plaintiff, her mother and the deceased was a short one. When her mother asked the deceased to take responsibility for the plaintiff he refused saying that he did not have any room at his house and he then terminated the meeting. At that stage the deceased was living with an aunt who was assisting in raising Lynette and John.

5   On 3 May 1969 the plaintiff who was then 15 years of age saw her father at her sister Lynette’s wedding. According to the plaintiff he said hello to her there but there was no meaningful discourse between them. In 1971 the deceased married Jean Margaret Schulstead. She had a daughter, Jan, from a previous marriage. The plaintiff was educated between 1960 and 1970 at Malabar Primary School, Matraville High School and Fort Street High School. At the end of that period she changed her surname by Deed Poll to the name of her stepfather, “Hill”. Between 1970 and 1978 she was employed as a typist, stenographer and receptionist. She married on 12 March 1977. She did not invite her father to the wedding. She said that her stepfather, Mr Hill, was very uncomfortable in any social situation outside the immediate family. It was natural for her to ask him to give her away at the wedding and she was aware that if she had asked her father to the wedding that it was probable that her stepfather would not have attended the wedding.

6   The plaintiff had three sons. The first, David, was born on 11 July 1978, the second, Nathan was born on 30 October 1980 and the third, Stewart, was born on 6 February 1985. The plaintiff’s marriage was apparently an unhappy one and she separated from her husband in 1990. At the time the marriage was breaking up she rang her father to discuss the fact that she was worried about her future and according to him, he only spoke for a minute or two and did not give her time to tell him anything. She said he said he would call her back, took her number to phone her back but he did not do so. She conceded in cross-examination that she may well have addressed her father by his Christian name, Fred. It will be recalled that this is the incident to which the deceased referred in his note which I have earlier set out.

7   The plaintiff’s property matters were settled in the Family Court proceedings in October 1990. Prior to that on 5 July 1990 there was a letter in which the deceased wrote to his former wife and Charles Hill thanking them for some photos of Anne and her family which apparently had been sent to the deceased. There was discussion in the letter about whether an album should be sent. On 12 September 1990 there is another letter in which the deceased wrote to Elsie and Charles saying how he was pleased to receive the album. He said, “We feel sorry things are not going too well for Anne. She has missed out on so much. …..Hope all goes well for Anne”. Clearly the deceased well knew that his daughter Anne was not having a good time no doubt as a result of her marriage break up. In 1992 the plaintiff’s marriage was dissolved. In May 1992 and June 1992 there was the letter and the will to which I have referred. After the dissolution of the marriage the plaintiff obtained part-time employment which she continued.

8   In September 1994 the plaintiff employment was terminated as a result of the failure of her employer’s business. According to the plaintiff she rang her father and told him this and said that life was a bit difficult as she would be out of work bringing up three children. He responded by asking what she expected and hoped that it was not money. She responded that what she really wanted a little sympathy and encouragement. According to the plaintiff the deceased response was, “That’s your problem not mine. When you were a baby you’re grandparents would not look after your brother and sister but they looked after you”.

9 The deceased died on 27 June 1999 and probate was granted two months later. On 15 October 1999 the solicitors employed by the plaintiff in South Australia wrote foreshadowing a claim under the Family Provision Act asking for an undertaking that the estate not be distributed. In a response the next day the estate’s solicitors refused to give that undertaking and several days later the estate property at 84 Mason Street, Maroubra was transferred to John Palmer and his wife who purchased it. On 22 October 1999 there was the first distribution to the three residuary beneficiaries of $120,000 and on 18 November 1999 the second distribution of $60,000 each was made. Jan O’Connor received her distributions and it will be recalled that she was a stepchild of the deceased. After marrying she had lived most of her life in Canada. She made a will in December 1999 and died some time after the death of the deceased. Under her will her estate passed to a friend Maureen Neal, Saskatchewan in Canada.

10 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

11   I turn to the look at the situation of the plaintiff. She is 52 years of age, single and has only one child who is partly dependent upon her. She has part-time work and her income for the year ended 30 June 2001 was $32,520. As a result of her property settlement she has $70,000 in a cash management account. She has a superannuation entitlement of $7,700. She lives in rented accommodation and owes $4,000 on her credit card. Her car is a 1982 model Camira motor car which she bought second hand some years ago. The plaintiff advances a number of ways in which she says she has been left without adequate and proper provision for her maintenance, education and advancement in life. Primarily she says that she would wish to purchase a house at a cost of about $200,000. She says that she has a need for security and the evidence indicates that such sum would buy her a three bedroom home in Adelaide. She also says that she needs to pay off her credit cards, buy a computer system for $3,000 and purchase a new car at a cost of some $20,000. The car is important to her because it enables her to travel to her employment.

12   As I have indicated earlier, the central matter which has been debated is the relationship between the plaintiff and the deceased. As the recounting of the facts set out shows the plaintiff and the deceased never lived together and the plaintiff’s first recollection of the deceased is the meeting when she was 14 years of age at which her mother asked her father to take over responsibility for her. The deceased declined to do this because he did not have the room or did not wish to do so. I am satisfied on the evidence that the deceased did, in fact, pay maintenance up until the plaintiff was 16 years of age. There was some hearsay evidence from the plaintiff that her mother said maintenance was only paid for two weeks but in the light of the evidence from the deceased in his letter, I would not accept this hearsay evidence from the mother as there was no reason put forward for her not giving evidence. After the meeting when the plaintiff was 14 years of age there were two other face to face contacts in the lifetime of the deceased and perhaps one or two other occasions when the plaintiff met the deceased at one of her siblings’ houses. It is perfectly plain that there was no communication between them apart from the exchange of greetings. There was no enquiry by the deceased as to the plaintiff’s circumstances or by the plaintiff as to the deceased’s circumstances.

13   By the time the plaintiff’s wedding occurred in 1977 she had been living with her mother and Mr Hill for many years. Clearly she made a choice not to have her father at the wedding for what she considered to be good reasons. The letter of May 1992 from the deceased was written after he had the conversation with his daughter in 1990. It was also after he became aware of her difficult situation. As evidenced from the letter about the photograph albums it seems clear from the letter that the deceased did not wish to have anything to do with the plaintiff. It also seemed clear that at least up until 1990 when she fell on hard times that the plaintiff herself did not wish to have anything to do with her father. She had made a conscious decision to have her stepfather at her wedding and thereafter she had three children and did not tell her father about them or their impending births. There was some evidence from the plaintiff’s sister, Lynette, to the effect that the plaintiff hated her father. This was given in somewhat general language and was not referred to in her affidavits. I tend to discount that evidence because of the lack of specificity as to time and precisely what was said. However, having said this it is fairly clear that at least up until the plaintiff fell on hard times there seems to have been a mutual arrangement on both sides for the plaintiff and her father to have nothing to do with each other. There were then the pleas for help from the plaintiff to her father as her marriage broke up which were rebuffed. Apparently he did not like being called, “Fred”. Then there was another plea when the plaintiff was again in a difficult situation. She received no response from her father to her pleas for help and compassion. One could hardly expect her to have done anything further after the second of these approaches was rebuffed by the deceased. The question is what has to be made of all this.

14 Section 7 of the Family Provision Act provides that if a court is satisfied that a person is an eligible person “it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the court, ought, having regard to the circumstances at the time the order is made to be made for the maintenance, education or advancement in life of the eligible person.”

15 In Benney v Jones (1991) 23 NSWLR 559 at 568-9, Priestley JA noted as follows:

“This conclusion directly raises the question of whether the word “ought” in s.7 of the Act carries with it an idea of moral obligation. In answering this question some guidance may be obtained from authoritative decisions under the Testator’s Family Maintenance & Guardianship of Infants Act 1916 (as amended), using due care to take account of the differences between the two Acts.
…..
It seems plain from the comparison of the two Acts, and particularly from s.3 of the 1916 Act and s.7 and s.9 of the present Act, that language from the earlier Act has been deliberately carried into the later one. It would seem that at least one purpose of this retention of much litigated sets of words is that the benefit of the authorities on those words may be available in the construction of the present Act. The same reasoning supports the view that where the new Act uses a different word in an important operative section from the word in the corresponding section of the earlier Act, the difference is deliberate and has a purpose.
The Act draws a distinction between the eligible persons referred to in par(a) and par(b) on the one hand and par(c) and par(d) on the other. Broadly speaking, the distinction can be seen as one between classes of people who, in the ordinary course of family life would, prima facie, be persons to whom the deceased’s person spoken of in s.3 of the 1916 Act and s.7 of the present Act would have an obligation to make provision, whereas those in the other class would, prima facie, not be regarded in the ordinary course of family life as being likely to be made the subject of provision by the deceased.
In regard to the first class, the more usual approach under the 1916 Act was that before making an order, the court needed to be satisfied that the testator ought to have made provision for the applicant, in all the circumstances of the case: see Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478–479 and Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 146-147 per Gibbs J, with whom Mason and Aickin J both agreed. However, there was a differing view, expressed by Murphy J, in the same case when, after commenting (at 158) that “many cases suggest that an applicant must show a moral claim …”, he went on to say that this was a gloss on the Act and was unwarranted and inconsistent with the language of the legislative scheme.
It seems to me that the introduction into s.7 of the present Act of the word “ought” in replacement of the words from s.3 of the 1916 Act “as the Court thinks fit” shows the intention of the present Act to accept the approach adopted by the majority in Hughes and to reject that of Murphy J. The word “ought” seems to be deliberately adopted, in the present Act, from what Gibbs J called the classical statement in Bosch . To my mind, this is a very clear indication that an eligible person within par(c) and par(d) must show a moral claim on the estate before an order can be made; I also think this is the same thing as saying that the deceased person must have had a moral obligation to that eligible person. It is hard to imagine how the one could exist without the other. It seems to me that the same reasoning is very probably applicable to applications by eligible persons within par(a) and par(b) although it is unnecessary to decide that in this case.”

16   Meagher JA (NSWLR at 570) agreed with Priestley JA.

17   Meagher JA had previously expressed a view in Hughes v Hughes Court of Appeal unreported 6 June 1989 (an adult daughter case) that the duty arose to make provision as established in that case as follows:-

“Her right arises not merely from the bare fact of parenthood, which of itself does not generage a right, but from the general circumstances of the case; namely, parenthood, the performance of normal filial duties in the 10 years after she left school and in the two periods between her earlier trips and in her professed and continued willingness to be of whatever assistance to her father she could be.”

18   Hope and Samuels JJA concurred in the judgment of Meagher JA in Hughes v Hughes.

19   In Benney v Jones, Mahoney JA at 560 said:

“Whether an order should be made raises (as it has been described) the moral or normative question. That question remains, whether the application is made under the former or the present Act. The nature of that question was discussed in this Court and in the High Court in White v Barron (1980) 144 CLR 431; and in Goodman v Windeyer (1980) 144 CLR 490: see, also, Kearns v Ellis (Court of Appeal 5 December 1984 unreported) and Gorton v Parks (1989) 17 NSWLR 1.
“Where the applicant is a member of the deceased’s family, as referred to in the earlier paragraphs of s.6(1) relating to eligible persons, the nature of the duty which the deceased should have fulfilled is reasonably clear.”

20 In Gorton v Parks (1989) 17 NSWLR 1 at 7 ff, Bryson J analysed the relevant authorities dealing with claims by able-bodied adult males. For present purposes, there is no reason to distinguish able-bodied adult females. In the course of doing so, His Honour noted:

“It is then established by authority that no special principle is to be applied, and it seems important to warn myself against allowing prima facie views or the success of some applicants who have special claims to disturb the perception that there is no special principle. In particular, an idea that an able-bodied adult male who is earning a living could have no claim in relation to resources of any size is quite erroneous and must not be entertained either prima facie or at any stage. It is a discarded categorisation:”

21 Bryson J also rationalised the decision of Pontifical Society for the Propagation of the Faith v Scales (Scales Case) (1962) 107 CLR 9. Scales’ case was a claim by an adult son, who was unsuccessful, and where Dixon CJ said (at 18):

“The outstanding fact of the case is that, throughout the period of their joint lives, the son disregarded the father and the father disregarded the son and after a time expressly disowned him. … In truth there is the bare fact of paternity and no other mutual relation: the case depends upon that fact and basically upon nothing else except all the arguments of right and wrong that may be considered to spring from that source and affect the situation of the parties as it existed at the testator’s death.”

22 At 17 NSWLR 1 at 9-10, Bryson J sought to distinguish Scales Case. He said:

“Dixon CJ did not expound the weight which he gave to the bare fact of paternity and nothing else; I regard that bare fact as of very great importance in morality. The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgment of the obligations or of the child appears to me to be an idea from a distant age. There have been changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he has no moral duty towards them. There seem to have been legal systems in the past in which attempts to provide for illegitimate children by will were ineffective; … Under modern legislation parental duties are not distinguished according to acknowledgment or legitimacy. The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.”

23   Bryson J in any event distinguished Scales case (p 11) on the basis that on the facts before him the plaintiffs,

“In their childhood years they lived in the same street in which their father lived in far greater prosperity a few doors away: they saw him and he saw them from time to time, and they had a relationship with him in which negative aspects preponderated greatly or almost exclusively over any positive aspects of the familial relations. A mutual relation there was. Each of them had a relationship with the testator which the testator brought to an end; in the case of Mrs Joan Adams and Mr John Culcott, he saw something of them and made an inadequate contribution to their maintenance in their childhood, but in effect abandoned the relationship before they reached mature years and at a time when they cannot fairly be held responsible for ending the relationship. They were present before his eyes in their childhood and years of education and trade training; he knew who they were, he must have had an idea of what they were doing, and he did not make even token attempts to assist them in any way. ..”

24 In Walker v Walker (unreported 17 May 1996) Young J reviewed the question of moral duty. His Honour reviewed Gorton’s case, in the context of the earlier High Court and House of Lords decisions, noting the effect of Singer v Berghouse (1994) 184 CLR 201 as follows:

“In Singer’s case , a widow who had been married less than one year to a 68 year old man failed in her application under this Act in this court, in the Court of Appeal and in the High Court. The majority of the court said at page 208 and following that to assess a claim under the present Act there is a two stage process. The first stage is to determine whether an applicant has been left without adequate provision and the second stage is to determine what provision ought to have been made. At p 209 the Judges point out that Re Allen has guided past courts and has three times been approved by the Privy Council or High Court, but that “we doubt this statement provides useful assistance in elucidating the statutory provisions. Indeed, references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”. They then say “the determination of the first stage in the two stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.”

25   Young J also observed:

“In Fraser’s case, Kirby P at p29 said that “I do not consider that it would be safe for this court, or other courts in this state, to disregard the obita dicta in Singer v Berghouse concerning “moral duty”. However, His Honour’s decision made it quite clear that he thought that references to moral duty in the judgment under appeal really amounted to little more than a shorthand expression for the lengthier statutory provisions actually used in the Act. His Honour made it clear that there was no drastic change in the law “either by the observations of the majority in Singer or by the High Court’s reference, in the footnote, to what Murphy J said earlier (p27).”
“Handley JA thought that the dicta in the High Court in Singer should not be followed and pointed out that even as late as 1994 in Neil v Nott (1994) 68 ALJR 509, the High Court was itself using the words “moral claim” in decisions under this Act.
“Sheller JA again did not consider that the High Court’s suggested abandonment of concepts of moral claim or moral obligation changed the task of the court. He said, with reference to decisions of Murphy J at p42 “the point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant’s case but not alone sufficient to justify an order in the claimant’s favour. Thus, in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand, a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. The courts, in giving effect to the legislative scheme, having accepted that the bare moral claims of the sort mentioned by Stout CJ in re Allardice (1910) 29 NSWLR 959, 970 will not alone suffice to empower the court to make an order.”

26   In Walker v Walker, (p 27) Young J noted:

“It is often impossible to work out whether the degree of separation between parent and child at the date of the parent’s death is solely the fault of either or whether it has come about by factors too strong for either to control or somewhere in between.
The important matter is not fault, but, whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.
Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. …”

27   It seems to me that the formulation of His Honour Mr Justice Young is sufficient and appropriate to guide me in determining these matters.

28   In the present case one has a long period where the plaintiff and the deceased did not regard there being any family relationship between them. In these circumstances it would hardly be expected by the community if this was all that had happened that the testator would be expected to make any benefaction in favour of his daughter. There had been minimal inter-reaction and the testator had satisfied his statutory obligations to support his child during her infancy. The two approaches that the plaintiff made to the deceased were a change in the dynamics of that arrangement. Clearly the plaintiff was in need and saw her father as a person to whom she could turn. She sought to re-establish some relationship but was rebuffed on two occasions. The reason for her being rebuffed does not seem appropriate as it seems that the testator held a grudge. It also clear that the testator knew that his daughter was going through difficult times and needed support. Although the concept of there being some duty to provide for a child who has for many years disregarded her father, falls on hard times and then tries a rapprochement, might be difficult, but I think in this case it is appropriate to make some provision. The fact of the matter is however that there was this substantial period when the plaintiff and the deceased had nothing to do with each other. There was therefore not the usual ability for familial inter-reaction. Accordingly, any provision that the deceased should have made for the plaintiff would be substantially reduced.

29   It is necessary, of course, to have regard to the situation of others who are the objects of the testator’s bounty. The situation of John Palmer is that he is aged 51 years and is married. He and his wife work, they have a house worth $360,000 and a car worth $16,500. They have a large mortgage of some $202,655 and credit card debts of about $12,000. Their financial situation is modest for their time in life.

30   Lynette Booker apparently lives by herself and owns her own home which is worth some $430,000. She has a car worth $8,000 and other investments of about $23,800. She has a mortgage and credit card bills totalling $59,600. She has sufficient income to meet her commitments although she does not have a large mortgage she has to manage on her own resources.

31   As far as Jan O’Connor is concerned it is apparent that she died in October 2000 in Canada. Despite extensive correspondence there has been no evidence forthcoming as to the situation of the estate on the beneficiary, Maureen Neal. Accordingly, the court can assume that she does not wish her financial situation to be put forward for consideration by the court in deciding what orders should be made and where the burden of any provision or costs should fall.

32   There are a number of things to consider about the plaintiff’s claim. She advances a need for accommodation and puts before the court the cost purchasing a three bedroom home presumably on the basis that her children might reside with her from time to time. No evidence is given as to whether she is able to borrow any funds given her level of earnings but one would assume that she could do this. She has some $70,000 in cash and it is of course the case that normally a child cannot expect to be provided with a debt free home by a parent.

33   In Shearer v Public Trustee His Honour Mr Justice Young had the following to say:

“Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own”.

34   The other matter which is important is the question of the contact between the plaintiff and the deceased. Having regard to these circumstances it seems to me that some small provision ought to be made for the plaintiff to give her some backstop if she wishes to buy a car she can, if she wishes to move towards obtaining a house she will have some funds to enable her to do so.

35   Accordingly, the orders that I make are:-

1. The plaintiff receive a legacy out of the estate of the deceased of $30,000.

2. That burden of such legacy shall be borne in the first instance out of the share of residue still undistributed which would pass to the estate of Jan O’Connor.

3. Order that the plaintiff’s costs on a party and party basis and the defendants’ on an indemnity basis be paid out of the estate of the deceased.

4. That the burden of costs in order 3 shall also be borne in the first instance out of the share of residue still undistributed which would pass to the estate of Jan O’Connor.
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Last Modified: 11/16/2001