Ford v Ford

[2003] NSWSC 294

CITATION:	Ford v Ford [2003] NSWSC 294
HEARING DATE(S):	1, 2, 11 October, 6 November 2002 12 March 2003 Written submissions to 1 April 2003
JUDGMENT DATE:	11 April 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master McLaughlin
DECISION:	(1). I order that, in addition to the benefit to which the Plaintiff is entitled upon the intestacy of the late Arthur Graham Ford ("the Deceased"), the Plaintiff receive from the intestate estate of the Deceased a legacy in the sum of $200,000, such legacy not to bear interest if paid within fourteen days of the date hereof, and if not so paid to bear interest at Supreme Court rates; (2). I order that the burden of the aforesaid legacy of $200,000 be borne by that part of the residue of the estate of the Deceased to which the Defendant is entitled upon intestacy, to the intent that the share of the estate to which Simon James Aiken is entitled upon intestacy not be reduced in consequence of such legacy; (3). The exhibits may be returned; (4). I will hear Counsel concerning costs.
CATCHWORDS:	Succession - Family Provision - Intestacy - Claim by adult son - Financial and material circumstances of Plaintiff - Conduct of Plaintiff constituted a direct financial contribution to the Deceased, and also to the value of the estate - Competing claims of other persons entitled to share intestate estate - Such persons are widow and infant exnuptial child of Deceased - Additional provision for Plaintiff should be borne by the share of residue to which the widow is entitled upon intestacy - A claim under the Family Provision Act is not an administration suit in respect to the estate of the Deceased.
LEGISLATION CITED:	Family Provision Act 1982 Testator's Family Maintenance and Guardianship of Infants Act 1916
CASES CITED:	Blore v Lang (1960) 104 CLR 124 Singer v Berghouse (1994) 181 CLR 201
PARTIES :	Bevan Ford (Plaintiff) Wendy Ford (Defendant)
FILE NUMBER(S):	SC 3107/00
COUNSEL:	C. Harris, P. Blackburn-Hart (Plaintiff) B. Haffenden (Defendant)
SOLICITORS:	Gibsons (Plaintiff) Marks Griffiths & Bova (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 11 April 2003

3107/00 BEVAN FORD -v- WENDY FORD

JUDGMENT

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

2 By summons filed on 7 July 2000 the Plaintiff, Bevan Lloyd Ford, claims an order for provision for his maintenance, education and advancement in life out of the estate or notional estate (or both) of his late father, Arthur Graham Ford (also known as Graham Ford)(to whom I shall refer as “the Deceased”).

3 The Deceased died intestate on 14 January 1999, aged sixty-three years (having been born on 9 December 1935). Letters of Administration of the intestate estate of the Deceased were on 18 May 2000 granted to Wendy Ford, the widow of the Deceased (who is the Defendant to the present proceedings).

4 The Inventory of Property discloses the following significant assets, owned by the Deceased at the time of his death:

House property situate at and known as 3 Erola Circle, Lindfield (to which an estimated value of $450,000 was ascribed).

Moneys in various bank accounts, totalling about $393,400.

Superannuation entitlement (approximately $200,000).

Various loans (about $169,000).

5 The assets of the estate are disclosed in the Inventory of Property as having a total value of $1,212,184.

6 All the assets have now been realised. The Lindfield property was sold at auction on 2 December 2001 for $730,000 (the estate receiving a net amount of $701,540).

7 At the present time the amount held in the estate is about $950,000. (The discrepancy between that amount and the total amount of $1,212,184 disclosed in the inventory of property is largely the result of the fact that the superannuation entitlement was paid directly to the Defendant and did not become part of the estate of the Deceased.) However, in calculating the amount available for distribution the costs of the present proceedings must be taken into consideration. If the Plaintiff is successful in his present claim he would expect to receive an order that his costs be paid out of the estate of the Deceased. The Defendant, as administrator of the intestate estate of the Deceased, will, in any event, be entitled to an order that her costs be paid out of the estate. The costs of the Plaintiff are estimated to be in an amount of about $63,000 whilst those of the Defendant exceed $50,000. However, some of those latter costs have already been paid out of the estate, and it is estimated that about $35,000 of those costs of the Defendant presently remain unpaid.

8 I would, in regard to this matter of costs here observe that there was a very considerable quantity of evidence placed before the Court concerning the costs said to have been incurred by each party in respect to Aymeen Pty Limited and the Aymeen Superannuation Fund (to which company and to which fund I shall later make further reference), which costs either have been paid from the assets of the estate or are claimed to be payable from those assets. There was considerable dispute between the parties firstly as to the quantum of those costs, and secondly as to the entitlement of each party to have those costs paid out of estate assets.

9 The significance of costs to the present proceedings is, as I have already observed, that the Plaintiff, if successful, and the Defendant, in any event, will be entitled to receive their respective costs of the present proceedings out of the estate of the Deceased, with the consequence of thus reducing the amount in that estate available for distribution among those entitled thereto. Further, the claim of the Plaintiff that he is indebted in respect to costs legitimately incurred by him in respect to Aymeen Pty Limited or the Aymeen Superannuation Fund is relevant to the financial and material circumstances of the Plaintiff. (He has received from his solicitors bills totalling $20,000 in respect to that company and that trust.) Similarly, such costs paid or payable by the Defendant are relevant to her circumstances. But it is not for the Court in the present proceedings to embark upon some form of assessment of the costs already incurred, or which may be incurred, by either or both of the parties in respect to Aymeen Pty Limited or the Aymeen Supernannuation Fund.

10 The Deceased was survived by his widow, the Defendant, and by two children, being the Plaintiff and an exnuptial child, Simon James Aiken (who was born on 9 September 1985 and who resides in New Zealand).

11 Upon intestacy, the Defendant, as the widow of the Deceased, is entitled to $150,000 plus half the balance of the estate. Upon the assumption that the distributable estate is $950,000 (and, for the purposes of the present calculation, disregarding the costs of the present proceedings), the Defendant would therefore be entitled to $150,000 plus half of $800,000 (that is, $400,000). Thus the Defendant would be entitled to $550,000, and the two children of the Deceased would share the remaining half of the estate (being $400,000). That is, each of the Plaintiff and Simon would receive about $200,000.

12 In consequence of the institution of the present proceedings, it will be appreciated that the balance of the estate remaining after the amount of $150,000 becomes payable to the Defendant will be considerably less than the amount of $800,000. This is because the amount available for distribution will be reduced on account of the costs of the proceedings. I have already observed that there remain outstanding costs totalling almost $100,000 which, if the Plaintiff is successful in his claim, would be payable out of the estate. In calculating the amount available for distribution, it is appropriate therefore to reduce the foregoing amount of $800,000 by about $100,000. This will have the consequence that the balance of the estate remaining after the amount of $150,000 becomes payable to the Defendant will be about $700,000. If that figure be adopted, then the Defendant upon intestacy would receive a total amount of about $500,000, whilst each of the Plaintiff and Simon would receive an amount of about $175,000.

13 The Deceased married his first wife, Barbara Anne (now Mrs Barden) on 8 November 1958. Of that marriage was born the Plaintiff, the only child of his parents, on 23 January 1963. The marriage of the Deceased and his first wife had broken down by late 1980, and they were divorced in 1982. The Deceased and the Defendant married on 7 February 1987. The Defendant was born on 14 April 1937, and is presently aged sixty-five.

14 The Plaintiff married firstly on 12 November 1988. Of that marriage was born a son, Luke William (born on 28 December 1994, who is presently aged eight). The Plaintiff separated from his first wife in about August 1995, and their marriage was dissolved on 25 February 1996.

15 In about July 1996 the Plaintiff entered into a de facto relationship with Kathryn Anne Penny, whom he subsequently married on 7 October 2000. Of the second marriage of the Plaintiff there was born a son, Daniel (who was born on 15 July 2001, and who is presently aged one).

16 In July 1998 the Plaintiff and Kathryn purchased a house property at 1A Denbigh Place, Menai for $283,000 (in addition, they paid $10,000 in respect to stamp duty and legal fees). That purchase was funded by a borrowing of the sum of $100,000 from Kathryn’s parents and by a mortgage. The amount outstanding on that mortgage is currently $164,000. The interest on the loan from Kathryn’s parents is being repaid at the rate of $400 a month from the pooled resources of the Plaintiff and Kathryn (essentially being funded by the Plaintiff). There was considerable cross-examination of the Plaintiff (and also of Kathryn) as to whether the advance from Kathryn’s parents was a loan to both the Plaintiff and Kathryn or was a loan to only Kathryn. That it was a loan to only Kathryn was substantiated by the document signed by her, being Exhibit PF2 to the affidavit of the Plaintiff sworn 17 September 2002 (which is now part of Exhibit A in the hearing). The principal of the loan, $100,000, is still outstanding. The terms of the loan agreement contemplate that from July 2002 both principal and interest will be repayable at the rate of $175 a week. It is the Plaintiff’s estimate that the Menai property has a present value of $360,000.

17 For nineteen years until April 2000 the Plaintiff was employed by Blue Circle Southern Cement as a marketing manager. His annual salary in the last year of his employment was $66,686. Upon ceasing that employment the Plaintiff became entitled to a lump sum payment, which included superannuation benefits in an amount of $180,791. However, according to the Plaintiff, only an amount of about $30,000 of those superannuation benefits is accessible to him without incurring a tax liability.

18 The Plaintiff is presently employed as a sales manager, in which capacity he receives a gross income of $62,000 a year, together with a motor car. He also receives superannuation contributions.

19 The Plaintiff’s present wife Kathryn is employed as a knowledge systems officer by Austrade. Until she went onto maternity leave to give birth to their first child in July 2001 Kathryn was receiving an annual salary of a little over $41,000. She is now employed on a part-time basis, working three days a week, and receiving a salary of $29,000 a year. Kathryn has a superannuation entitlement of about $55,442. It is the intention of the Plaintiff and his wife to have at least one more child.

20 It was the Plaintiff’s evidence that he had a close and loving relationship with the Deceased. The Plaintiff was still living at home with his father when he married the Defendant. Indeed, the three of them resided together in the family residence at Homebush from May 1987 until the Plaintiff left home to marry his first wife a year and a half later.

21 The Plaintiff and the Deceased had a number of shared interests and activities which they performed together. From 1982 the Deceased involved himself in the Plaintiff’s interest in refurbishing a Cooper S motor vehicle which he had purchased. When in 1988 the Deceased became interested in antique clocks he involved the Plaintiff in that hobby.

22 The Plaintiff was involved in the construction of the Lindfield property. That involvement, which included hard physical work extending over many years, contributed to disharmony in the Plaintiff’s first marriage, because his then wife thought that he as putting his father before herself. According to the Plaintiff he assisted in the construction and improvement of the Lindfield property not only because of his affection for his father, but also because of statements made by the Deceased to the effect, “Your efforts are an investment in the future”. It should be appreciated that in carrying out work at the Lindfield property not only did the Plaintiff make a direct financial contribution to the Deceased, in the sense that his assistance obviated the necessity for the Deceased to pay labourers to perform that work; but also by so doing the Plaintiff made a direct financial contribution to the value of the estate, in that the work he performed increased the value of the most significant asset in the estate.

23 The Plaintiff and the Deceased owned a boat together, which they purchased in 1989. That boat (and the repairs which they effected upon it) gave them the opportunity of recreation and of spending time with each other. Indeed, the time which he devoted to boating activities with his father appears also to have contributed to matrimonial disharmony in the Plaintiff’s first marriage. When the Plaintiff and his first wife were divorced the Deceased lent him an amount of $32,000 to assist the Plaintiff in making a lump sum maintenance payment to his first wife. Although there was a suggestion that the Deceased had said that the Plaintiff did not need to repay that sum (that suggestion apparently having been communicated to the Plaintiff by his mother), the Plaintiff treated that advance as a loan which he was obligated to repay. At the time of the death of the Deceased there was still an amount of $21,000 outstanding on that loan of $32,000, the Plaintiff having repaid the balance.

24 When the Plaintiff underwent surgery for a malignant melanoma in 1990 the Deceased visited him every day during the period of nine days whilst he was in hospital. The Deceased regularly met the Plaintiff for lunch whilst the Plaintiff was at work, and the Deceased was in the habit of telephoning him every two or three days.

25 The Defendant (who, as I have already recorded, is presently aged sixty-five) was born at Gravesend in England, in which country she grew up and was educated. From 1955 until 1987, when she married the Deceased, the Plaintiff worked as a make-up and hair artiste, firstly for Associated Rediffusion Television in London, and subsequently for London Weekend Television, where she ultimately became the head of the make-up department. In 1974 the Defendant purchased a two bedroom apartment, with an attached garden and garage, at Greenwich in London.

26 The Deceased (who had originally come into contact with the Defendant through his work at Associated Rediffusion Television in about 1958) renewed acquaintance with her in April 1986. They maintained contact after the Deceased returned to Australia later in that month. At the suggestion of the Deceased the Defendant came to Australia for a holiday in July 1986, and they spent four weeks together, both at the Deceased’s residence, and then travelling in New South Wales and Victoria, as well as spending a week on a cruising vessel.

27 The Deceased and the Defendant married on 7 February 1987 at the Greenwich Registry Office in London, and they afterwards underwent a religious ceremony at St. John’s Church, Blackheath in London. The Plaintiff and a friend of his came to London from Australia to attend the wedding, which was also attended by the Defendant’s elderly mother. It had been agreed between the Deceased and the Defendant before their wedding that they would reside in Australia. To this end the Defendant had arranged for the termination of her employment, and for the sale of her apartment in Greenwich, and for the shipment of her furniture and effects to the residence of the Deceased at 60 Abbotsford Road, Homebush.

28 The Defendant sold her apartment at Greenwich for 43,000 pounds, receiving (after discharge of the mortgage, and payment of solicitor’s fees and agent’s fees) a net amount of 30,500 pounds, which she deposited in a bank account in Britain.

29 The Deceased and the Defendant arrived in Sydney on 10 May 1987, and entered into residence at the Deceased’s property at Homebush. That consisted of a commodious Victorian residence, which the Deceased had inherited from his parents upon the death of his father in 1986 (it originally having been inherited, as the Defendant understood it, from the Deceased’s father’s uncle). That residence was, according to the Defendant, in a somewhat rundown state. The Defendant gave evidence of the work which between 1987 and 1995, when it was ultimately sold, the Defendant performed by way of maintenance of and renovations to the Homebush residence.

30 Throughout the entire period of their marriage the Deceased owned the house property at 3 Erola Circle, Lindfield. The house upon that property was largely constructed by the Deceased personally. According to the Plaintiff, the land was purchased by his parents in 1978 and construction of the house commenced in 1981, it being completed to lock-up stage over the ensuing eighteen months. Despite the fact that, according to the Defendant, the house was in a more or less habitable condition at the time when she arrived in Australia, nevertheless the Deceased constantly wished to effect improvements, enhancements and embellishments to that property, and would never specify, in response to inquiries in that regard by the Defendant, when they would ultimately move into occupation. In the event, the property was never the residence of the Deceased and the Defendant, although it was always intended to be their residence and their dream-home. The evidence discloses that a tremendous amount of time, energy, effort, physical work, and the expenditure of money was devoted to the Lindfield property (although the Plaintiff disputed the extent of the Defendant’s involvement therein).

31 The Deceased sold the Homebush property in October 1994 for $550,000 and that property was vacated by him and the Defendant in January of 1995.

32 Although, according to the Defendant, the Lindfield property was at that time in a habitable condition, nevertheless, the Deceased preferred (and the Defendant went along with that proposal) that they should reside in rented accommodation until the Lindfield property had achieved that state of perfection which was the aim of the Deceased.

33 In consequence, the Deceased and the Defendant thereafter lived in rented accommodation, to the time of the death of the Deceased (which was sudden and unexpected). They firstly resided in a flat at 6/711 Pacific Highway, Gordon, where they remained until the end of 1998. Then, as a result of the sale of that flat, it was necessary for the Deceased and the Defendant to vacate, and they thereupon moved into Unit 9/266 Pacific Highway, Lindfield, where they remained until the death of the Deceased.

34 Throughout the period of their marriage the Deceased was mostly in employment, as a television producer, although he worked for a number of different employers throughout that period, and on occasion there were times when he found himself unemployed. The Defendant throughout the period of their marriage essentially was not in employment, and devoted herself to being a fulltime wife, and to attending to restoration and renovation work on, firstly, the Homebush property, and also the Lindfield property. It should also here be recorded that in 1993 the Defendant was diagnosed as suffering from breast cancer. Surgery for that condition in March 1993 appears to have been successful.

35 Throughout the period of their marriage the Deceased and the Defendant largely kept their finances separate. However, the Deceased was the breadwinner of the family and it was his income which supported himself and the Defendant throughout their marriage. Nevertheless, on one occasion, whilst he was unemployed, the Deceased borrowed from the Defendant. Despite subsequent requests by the Defendant the Deceased did not ever repay that loan.

36 During the period of their marriage the Defendant regularly travelled back to England, in order to visit her aged mother (who is now deceased) and to see other family members and friends.

37 At the present time the Defendant continues to reside in the rented accommodation at Lindfield where she and the Deceased were residing at the time of his death. The Defendant is presently undecided whether she will remain in Australia or whether she will return permanently to England.

38 During the course of the marriage of the Deceased and the Defendant there was incorporated a company Aymeen Pty Limited (to which I shall refer as “Aymeen”), and there was established the Aymeen Superannuation Fund. Essentially the purpose of that company and that fund was for the benefit of the Deceased. His earnings were paid into Aymeen, from which he then received a regular salary.

39 At the present time the Defendant has investments in the United Kingdom (resulting from an inheritance from her mother in late 1998 and the maturity of an insurance endowment policy to which she had contributed for forty years), together with premium bonds and savings. Those investments, when converted into Australian dollars, total about $341,000. In addition, the Defendant has investments in Australia to a value of about $61,000.

40 In addition, the Plaintiff after the death of the Deceased received the totality of the Aymeen Provident Fund (which I gather to be identical with the Aymeen Superannuation Fund), in an amount of $236,000. Despite the submissions of the Plaintiff concerning the circumstances in which the payment of that sum was made to the Plaintiff, I do not consider that it is appropriate that I should do more than record that that amount constitutes an asset currently held by the Defendant.

41 The Defendant’s present income consists of a pension from Granada Television, payment from Eaglestar, and a pension from the Department of Social Security (all paid to her from the United Kingdom), which have a value in Australian currency of about $44,000.

42 The Defendant has placed before the Court details of her expenditure. By far the largest item is rent of her present accommodation at Lindfield (in an amount of a little over $21,000 a year).

43 After the death of the Deceased the Defendant became aware that the Deceased had an exnuptial child, Simon James Aiken, who resides in New Zealand. Until then neither the Defendant nor the Plaintiff had been aware of the existence of Simon.

44 The circumstances surrounding the relationship of Simon’s mother with the Deceased and the conception and birth of Simon are set forth in the affidavit of Wendy Jacqueline Aiken sworn 26 September 2002. They reflect little credit upon the Deceased. He did not acknowledge his paternity until after Mrs Aiken commenced proceedings in the Children’s Court at 323 Castlereigh Street, Sydney in 1986, and until after blood tests of the Deceased and Mrs Aiken had been conducted. As a result of those proceedings the Deceased agreed to pay lump sum maintenance of $15,500 to Mrs Aiken “in full settlement of the Applicant’s claim against the Respondent for maintenance and preliminary expenses for the child Simon James Aiken”. The Deceased never sought to see Simon or to have any contact with him until Ms Aiken and Simon removed from Sydney to New Zealand (which I understand to have been her native country) in 1987. Apart from the foregoing payment the Deceased never contributed to Simon’s welfare or education, and he had no input in Simon’s life.

45 It will be appreciated that Simon is, upon the intestacy of his father, entitled to share equally with the Plaintiff in the residue of the estate. Although Simon is not a party to the proceedings, his interests have been represented by a solicitor, and affidavits from Simon’s mother, sworn on 3 August 2001, and 26 September 2002 have been placed before the Court, setting forth full details of the financial and material circumstances of Simon and his mother. It is a fair summary of those details that Simon and his mother are not in affluent circumstances. Simon (who was born on 9 September 1985 and is presently aged seventeen) has no assets of his own, and is totally dependent upon his mother. Until the end of 2002 he attended a boarding school in Auckland, New Zealand, for which he was selected in the face of considerable competition. No fees were payable for his attendance at that school. However, his mother had to provide him with accommodation and sustenance for weekends and throughout school holidays. It was Simon’s ambition to attend university or pursue other tertiary education after he completed his schooling at the end of 2002.

46 It is in the light of the foregoing facts and circumstances that the Court must approach the present claim of the Plaintiff.

47 I have had the benefit of receiving written outlines of submissions on behalf of each of the Plaintiff and the Defendant. In addition, I have also been provided with submissions by the solicitor acting on behalf of Simon James Aiken. Those several submissions will be retained in the Court file.

48 There has also been placed before the Court by the Defendant, on 11 October 2002, a document entitled “Statement of Agreed Position”, which sets forth the attitude of the Defendant agreed between her and Simon Aiken as to how, in the event that the Plaintiff receives any additional provision out of the estate of the Deceased, the burden of that provision should be borne.

49 After I had reserved my decision, but before my reserved decision herein had been published, application was made by the Defendant on 7 March 2003 for leave to re-open her case, for the purpose of tendering a letter dated 22 March 1987 which had been addressed to her by the Deceased. That application was opposed by the Plaintiff. However, for the reasons set forth in my ex tempore oral judgment delivered on 7 March 2003, I granted leave to the Defendant to re-open her case and to tender that letter (which is now Exhibit J in the proceedings). I also made directions concerning the lodgement of further written submissions by the parties relating to such additional evidence. Those further written submissions will be retained in the Court file.

50 As a son of the Deceased the Plaintiff is an eligible person within paragraph (b) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. It must also be appreciated that the Defendant, as the widow of the Deceased, is also an eligible person in relation to the Deceased, being such within paragraph (a) of the definition. Further, Simon Aiken, as a son of the Deceased, is, equally with the Plaintiff, an eligible person within paragraph (b) of the definition.

51 Each of those three persons is entitled to a share in the estate upon the intestacy of the Deceased. The only other eligible person in relation to the Deceased is his former wife, Mrs Barden. Although served with a notice of claim, she has made no claim against the estate of the Deceased. Indeed, an affidavit of Mrs Barden was filed on behalf of the Plaintiff, and she has been cross-examined.

52 A great deal of evidence was given by each of the parties concerning their respective contributions to the construction of the Lindfield residence, and concerning such matters as complaints attributed to the Deceased concerning the Defendant’s allegedly extravagant lifestyle and her regular trips to the United Kingdom.

53 It should be emphasised that the Plaintiff must establish his own case upon its own merits. In carrying out the first stage in the two stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208 it is necessary for the Court to reach a conclusion as to whether the Plaintiff has been left without adequate provision for his proper maintenance and advancement in life. In approaching this task the Court derives little benefit from assertions and denials concerning the relationship between each of the parties with the Deceased, especially between the Defendant and the Deceased.

54 In this regard it is appropriate to bear in mind the following salutory admonition of Windeyer J in the High Court of Australia in Blore v Lang (1960) 104 CLR 124, where His Honour (speaking of the statutory predecessor to the Family Provision Act, being the Testator’s Family Maintenance and Guardianship of Infants Act 1916) said, at 137,

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

55 There was a tremendous quantity of affidavit evidence placed before the Court concerning various incidents and aspects of the relationship between the Plaintiff and the Defendant after the death of the Deceased. However, at the hearing Counsel for the respective parties did not pursue the assertions and denials concerning those various incidents. That material can have no bearing whatsoever upon the claim of the Plaintiff. The Court in the present proceedings is not conducting an administration suit in respect to the estate of the Deceased. Neither is it conducting some form of inquiry into the manner in which the Plaintiff and the Defendant have since the death of the Deceased been controlling the affairs of Aymeen or the Aymeen Superannuation Fund. The Court in the present proceedings must reach its decision upon the basis of the circumstances as they presently exist and in the light of the assets of the estate as they are presently known. The Court cannot assume, firstly, that the Plaintiff will embark upon some other proceedings against the Defendant in the nature of an administration suit or in the nature of a challenge to the payment of the Aymeen Provident Fund to the Plaintiff; neither can it assume that the Plaintiff would necessarily be successful in any such claim or challenge.

56 The chief need presently identified by the Plaintiff is in respect to his debts (totalling about $316,000). He seeks provision which would enable him to pay out those debts and have what is described as an education/emergency fund of $60,000. That is, he seeks that, in lieu of his entitlement upon the intestacy, he should receive an amount of $375,000. I have already observed that upon intestacy (and taking into account the costs of the present proceedings) the Plaintiff would receive about $175,000. The Plaintiff, therefore, is seeking an additional provision from the estate in an amount of $200,000.

57 The most significant of the Plaintiff’s debts are those relating to the Menai residence. There is an amount of $164,000 presently outstanding under the mortgage over that residence. Although the advance of $100,000 from the Plaintiff’s parents-in-law is legally a liability of his wife Kathryn, the Court should recognise that the realities of the situation are that the repayments in respect to that loan are being made from the pooled resources of the Plaintiff and Kathryn, and that they are essentially being funded by the Plaintiff (he being presently the principal breadwinner). Thus the Plaintiff and Kathryn have a conjoint liability in respect to their Menai residence in a total amount of $264,000.

58 The mortgage is being paid at the rate of about $975 a month, whilst the loan is being paid at the rate of $700 a month. The total repayments of about $1675 a month constitute a significant part of the combined gross incomes of the Plaintiff and his wife (totalling $91,000 a year).

59 I have already observed that, in the event that the Plaintiff had not instituted the present proceedings, he would have received about $200,000 from his father’s intestate estate. In the circumstances as they presently obtain (and the Court is enjoined by section 7 of the Act to exercise its discretion “having regard to the circumstances at the time the order is made”), the consequence of the diminution of the distributable estate by reason of the costs of the present proceedings is that the Plaintiff will be entitled to receive about $175,000 from his father’s intestate estate. Neither the hypothetical amount of $200,000 nor the actual amount of $175,000 is sufficient to enable the Plaintiff to discharge the indebtednesses in respect to the residence which is the family home of himself, his wife and infant son (and the further children whom they hope later will augment their family).

60 Although the Plaintiff has prospects of inheritance from his mother, Mrs Barden (whose only child he is), and also from his stepfather, George Barden (Mrs Barden’s current husband), the Court must arrive at its decision having regard to the circumstances at the present time, not having regard to future possible (or even probable) circumstances and events which may occur many years hence (Mrs Bevan being presently aged sixty-seven, whilst her husband is aged only sixty-five).

61 I am satisfied that the Plaintiff’s entitlement to share in the intestate estate of his father is such that he has been left without adequate provision for his proper maintenance and advancement in life.

62 In proceeding to the second stage of the two stage process identified by the High Court in Singer v Berghouse the Court must not only consider the needs of the Plaintiff but must also consider the competing claims of those persons who have an entitlement to share in the intestate estate of the Deceased and who have a claim upon the bounty of the Deceased. In the instant case the only such persons are the Defendant and Simon Aiken.

63 It will be appreciated that the practical effect of any order for provision in favour of the Plaintiff is to reduce the amount available to be distributed to the Defendant and Simon.

64 The circumstances of Simon, an infant, who was not publicly acknowledged by his father and who has never known or received any benefit from his father during the lifetime of the Deceased, are such that I would not be disposed to interfere with Simon’s entitlement upon intestacy. Indeed, it will be recognised that that entitlement has, in consequence of the present proceedings, already been reduced from about $200,000 to about $175,000.

65 The Court must therefore consider whether the competing claim of the Defendant is such as to reduce, or even extinguish, any order for provision an entitlement to which the Plaintiff might otherwise have established.

66 It should here be recorded that the evidence discloses that the Defendant was a loving and devoted wife to the Deceased and that she gave up her life and career in the United Kingdom to enter into the Deceased’s life in Australia. Indeed, it was not disputed on behalf of the Plaintiff that the Defendant was a devoted and caring wife and was an excellent housekeeper. Nevertheless, the conduct of the Defendant after the death of the Deceased, in respect to the Deceased’s war medals and family memorabilia and in respect to the Deceased’s ashes not merely discloses a mean spirited and pusillanimous attitude on her part, but also reflects upon the credit of the Defendant in the present proceedings.

67 Further, the Defendant was not so generous as the Plaintiff and his witnesses when she gave evidence concerning the nature and depth of the relationship between the Plaintiff and the Deceased. I am satisfied that there existed between them a close and loving relationship of the nature described by the Plaintiff, and that father and son participated in many activities together and shared joint interests. To the extent that the Defendant’s evidence is inconsistent with that of the Plaintiff concerning his relationship with his father, and concerning, for example, the Plaintiff’s physical contributions towards the Lindfield property, I prefer the evidence of the Plaintiff.

68 In determining what provision ought to be made in favour of the Plaintiff, the Court should not disregard his contribution towards the conservation of and improvements to the Lindfield property (and in this regard I am satisfied that the Plaintiff made a significant contribution towards the construction of the house upon that property), and thus to the enhancement of the monetary value of the estate. If the Plaintiff receives a further benefit from the estate of the Deceased in an amount of $200,000 he will thus receive from the estate a total amount of $375,000. That amount will enable him to discharge the totality of the indebtedness in respect of his family home and to discharge the legal costs which he has incurred in respect to Aymeen and the Aymeen Superannuation Fund. If such an additional amount of $200,000 is paid from the share of the estate to which the Defendant is entitled on intestacy, the amount of her entitlement will thus be reduced from about $500,000 to about $300,000.

69 The question confronting the Court is whether such an amount, together with the Defendants own assets, are such as would have the effect of reducing, or even extinguishing, an order giving to the Defendant such an additional benefit of $200,000 from the estate of his father.

70 The Plaintiff’s assets in the United Kingdom have a value, when converted into Australian currency, of about $341,000, whilst she has investments in Australia worth about $61,000. In addition, she now has the totality of the Aymeen Provident Fund, being $236,000. Thus the totality of her assets (apart from her entitlement in the estate of the Deceased) have a value of about $638,000. If the Plaintiff is to receive an additional amount of $200,000, the Defendant will receive from the estate about $300,000. Thus she will have a total sum of about $956,000 to meet her future needs and requirements. Although no evidence in this regard was placed before the Court, that sum would appear to be sufficient to enable the Plaintiff, if she chose to remain in Australia, to purchase a satisfactory residence appropriate to her requirements, and to have a fund to meet contingencies.

71 Although almost half of the Plaintiff’s present income of $44,000 a year is expended on rent ($21,000), that situation is largely a result of the Plaintiff’s uncertainty as to whether she will remain in Australia or will return permanently to the United Kingdom. If she decides to purchase a residence in Australia, the Plaintiff will no longer have to meet that liability for rent.

72 I am not persuaded that the competing claim of the Defendant is such as to have the effect of reducing, let alone extinguishing, an order for provision in favour of the Plaintiff for an additional amount of $200,000 from the intestate estate of the Deceased.

73 I propose, in those circumstances, to make an order that the Plaintiff receive additional provision out of the estate of the Deceased in an amount of $200,000, and that that additional provision be borne by the share of residue to which the Second Defendant would otherwise be entitled upon intestacy.

74 The effect of such an order will, as I have already observed, be to reduce the entitlement of the Defendant from about $500,000 to about $300,000, and will preserve the interest of Simon in the estate in an amount of about $175,000.

75 Counsel for the Defendant requested an opportunity to make submissions concerning costs in the light of my substantive orders.

76 Accordingly, I make the following orders:

(1). I order that, in addition to the benefit to which the Plaintiff is entitled upon the intestacy of the late Arthur Graham Ford (“the Deceased”), the Plaintiff receive from the intestate estate of the Deceased a legacy in the sum of $200,000, such legacy not to bear interest if paid within fourteen days of the date hereof, and if not so paid to bear interest at Supreme Court rates.

(2). I order that the burden of the aforesaid legacy of $200,000 be borne by that part of the residue of the estate of the Deceased to which the Defendant is entitled upon intestacy, to the intent that the share of the estate to which Simon James Aiken is entitled upon intestacy not be reduced in consequence of such legacy.

(3). The exhibits may be returned.

(4). I will hear Counsel concerning costs.

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Last Modified: 07/10/2003