Fraser v Fraser

[2003] NSWSC 590

CITATION:	Fraser v Fraser [2003] NSWSC 590
HEARING DATE(S):	19 and 20 June 2003
JUDGMENT DATE:	2 July 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraphs 49 and 50
CATCHWORDS:	Family Provision. Application by two adult children. Estate passed to widow who had been married to deceased for three years. Legacies given to plaintiffs.
PARTIES :	Colleen Marie Fraser v Judith Anne Fraser Keith Douglas Fraser v Judith Anne Fraser
FILE NUMBER(S):	SC 3863/00; 4600/02
COUNSEL:	Mr P Lander for Colleen Fraser Ms. J. Needham for Keith Fraser Mr J. Waters for the defendant
SOLICITORS:	Trenches for Colleen Fraser Tonkin Drysdale Partners for Keith Fraser Bamford Marcellos O'Connor for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Wednesday 2 July 2003

3863/00 Colleen Marie Fraser v Judith Anne Fraser
4600/02 Keith Douglas Fraser v Judith Anne Fraser

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of late Alfred Terence Fraser who died on 11 March 1993 and aged 48 years. The deceased was survived by his two children of his second marriage who are the plaintiffs in these two actions. The actions have been heard together with the evidence in one as evidence in the other. The defendant in both actions is the deceased's third wife.

The deceased’s last will

2 The deceased’s last will was made on 26 November 1992. Under the will he appointed the defendant as his executor and in the circumstances which have occurred gave her the whole of his estate. He also appointed the defendant as the testamentary guardian of both plaintiffs. At the time of his death his children, who are the plaintiffs, were 11 and 10 years of age.

Assets in the deceased’s estate

3 At the date of his death the deceased had a number of investments which after allowing for liabilities amounted to $182,534.15. The deceased and the defendant jointly owned a home known as 81 Riviera Avenue, Terrigal and that home passed to the defendant by survivorship. They also owned a life-insurance policy having a value of $50,000 which also passed by survivorship to the defendant. Immediately prior to the deceased’s death there was a purchase of $480,593.04 in various shares and investments in the name of the defendant. The funds for these purchases substantially came from a payout which the deceased received in respect of his claim under the Dust Diseases Act. The deceased had contracted mesothelioma and died as a result of this disease.

The family history

4 I will deal with the chronology of the family history first by reference to the situation of the plaintiff, Colleen Marie Fraser. The deceased was born on 19 March 1944 and the defendant was born a 19 December 1955. The deceased first married in 1965 and had two children of that marriage. During the marriage the family home at 81 Riviera Avenue, Terrigal was purchased and constructed.

5 The defendant had married on 8 April 1972 and she had three children of her first marriage. The deceased married for a second time to Meryl Diane Fraser in 1975. There were two children of this marriage, namely, Keith Douglas Fraser who was born on 25 May 1982 and Colleen Marie Fraser who was born on 7 September 1983. Apparently the deceased’s second marriage ended shortly after the birth of his daughter, Colleen, and his second wife Meryl Fraser died on 21 August 1988.

6 On 20 January 1990 the deceased married the defendant and they commenced to reside in the testator's home at 81 Riviera Avenue, Terrigal. The deceased’s children, Keith and Colleen the children from his second marriage were also living at the home as was a child from the defendant's first marriage. It was in November 1992 that the deceased was diagnosed as suffering from Mesothelioma.

7 The deceased’s last will was made on 26 November 1992 as I have already recounted. On 18 January 1992 the family home at 81 Riviera Avenue, Terrigal was transferred by the deceased to himself and the defendant as joint tenants, the consideration being expressed to be the natural love and affection between the parties. An award was made by the Dust Diseases Board on 20 January 1993 and the testator died on 11 March 1993. On 13 May 1993 the Dust Diseases Board made a lump sum award of $147,300 in favour of the defendant together with a continuing weekly award. There was also an award of weekly payments for dependant children.

8 On 9 July 1993 the defendant obtained a grant of probate of the deceased’s will. The time for making the applications under the Act expired on 11 September 1994. The defendant had difficulty coping after the death of the deceased and in January 1996 Colleen was collected from a Christian youth camp at Toukley by her paternal grandmother, Anne Fraser and she commenced to live with her at her home at Swansea. In September of that year the Colleen moved to live with her half sister Michelle Britton at Chain Valley, New South Wales. At that stage she was 13 years of age. In October 1997 Colleen returned to Terrigal and stayed with the defendant for a short time. In November 1997 she moved to reside in Tasmania with her half brother Maurice Bradley and his family. Colleen and her brother, Keith, were both living with the Bradley family. In February 1998 the Bradley family with Colleen and Keith relocated to Lismore, New South Wales.

9 In 1998 the defendant purchased her present home at 24 Hennie Crescent, Ormeau, in Queensland. In 1999 she sold the family home at 81 Riviera Avenue, Terrigal.

10 In December 1999 Colleen returned with Maurice Bradley and his family to Devonport in Tasmania where they continued to live. She remained there until April 2000 when she moved into rented accommodation. Colleen's proceedings were commenced on 5 September 2000 and she attained her majority on 7 September 2001. She then elected to continue the proceedings on her own account.

11 Keith Fraser had attended Terrigal Primary School and Terrigal High School from 1993 until 1995 when he went to stay for a short time with this half brother Maurice at Devonport. However, that arrangement was not successful. In 1996 the defendant arranged for Keith to board at the Armidale School. He remained there for one year but then was asked to leave because of his behavioural problems. He returned to Tasmania to stay with Maurice Bradley and his family and completed Year 9 at Reece High School, Devonport.

12 In 1998 Keith relocated with the Bradley family to Lismore and started Year 10 at Lismore High School. Once again he was asked to leave school and did so. From the time he left home in 1998 and year 2000 he lived in various youth hostels, shelters and on the streets. In 2000/2001 he lived with his half brother, Alan, as well as staying at various hostels and emergency accommodation centres. After living in the Bayview Hotel for a while he moved to the Ocean Beach Hotel, Umina in January 2002. At the present time he is living in a flat on the Central Coast with his girlfriend but expects to be moved out later in the year when the holiday lettings occur. His application in these proceedings was filed on 13 September 2002.

Extension of time

13 Because the applications are out of time it is necessary for the court to consider section 16 of the Family Provision Act which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

14 In several cases His Honour Mr Justice Young has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at ‘sufficient cause” under 16(3) of the Act the factors which one looks at include the following:-

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?

15 Apparently His Honour also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time in respect of a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988) Powell J when considering the matter at the substantive hearing inclined to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989).

16 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, His Honour Powell J referred to this matter and in particular to the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

17 Relevant matters to be considered in my general discretion include the reasons for delay and the effect of infancy. That these were relevant on the general discretion was assumed by Cohen J in Dare v Furness (supra) when he said at p.500:

“This problem was referred to in the Report on the Testator's Family Maintenance and Guardianship of Infants Act 1916, by the Law Reform Commission of New South Wales (LRC 28, 1977) pars 3.4-3.10. It was said at par 3.4 that the court treats with sympathy applications by persons under legal disability for extensions of time for the commencement of proceedings. The commission was unable to establish what it considered to be an appropriate resolution of this difficulty. Despite the reference to the general attitude of courts to applications for extension of time on behalf of infants, it is not easy to find any authorities which deal with that situation. The mere status of a plaintiff as an infant is obviously not itself a sufficient cause for an application not being made within the prescribed period. In my opinion it is a factor which must be taken into account when the court is considering the sufficiency of the reason for delay in the bringing of proceedings. In particular, where a parent or guardian of the child has caused or contributed to the delay, but there are some reasons to explain it, then the fact that the child was at all times dependent upon the acts of that parent or guardian will be a fact to add to the reasons in considering whether there has been a sufficient cause shown for the delay.”

18 His Honour’s assumptions appear at p 501 and p 502 of the report.

19 In the present case the matters which are raised mainly concern the explanation for the delay in bringing the proceedings and the only prejudice will be to the defendant’s present financial situation. There is no matter of unconscionable conduct which has to be taken into account. It is to be borne in mind when considering the question of delay and any explanation that it was the defendant herself who was the testamentary guardian of Colleen and Keith. It also has to be borne in mind that they were not in her custody for some time after the time for making an application had expired. Any such application would of course have been contrary to the defendant’s own interests.

20 In respect of Colleen's application it will be recalled that this was commenced prior to her obtaining her majority. In the circumstances the defendant does not the dispute that sufficient explanation is given in respect of her application. I agree and I would propose to extend time in respect of her application.

21 There is however a dispute in respect of the application for extension of time by Keith and it is suggested by the defendant that there has not been a sufficient explanation given my him. In paragraph 30 of his affidavit of 3 October 2002 Keith explains the reasons for his delay. That paragraph is in the following terms

“I have been advised that my application for provision from my father’s deceased is being made very late and out of time ordinarily allowed to bring such an application. I have led an itinerate life. The Solicitors for my sister Colleen did give me some advice by correspondence a couple of years ago but I was unable to deal with it. By letter dated 5th October, 2001 addressed to my half-brother Alan’s home they advised there may be a conflict of interest and they could no longer act for Colleen and myself. In February, 2002 I consulted Alleyne & Co, Solicitors of Woy Woy who obtained my file from Colleen’s solicitors. By letter dated 5th March 2002 Messrs Alleyne & Co., Solicitors advised me that due to pressure of work, they no longer take matters of this kind. By letter dated 15th July 2002 addressed to me at 49 Holden Street, Gosford, the defendant’s solicitors served a Supreme Court notice on me. When I eventually received that notice I made an appointment with my current solicitors. I believe that they made some inquiries and on 23rd August this year sent to me a letter advising they would be prepared to assist me to bring this claim.”

22 No details of the advice that was received have been given and one must infer that the details of that advice would not assist Keith’s case. However, there is no evidence that suggests that he knew about the provisions for time limits in respect of these applications. For some years Keith has suffered from problems with cannabis use and depression. His life since he was 16 years of age has mostly involved him living on the streets with little adult help or guidance. There is no doubt that in this period he would not have had anyone who could have effectively assisted him with a matter such as the present and this becomes obvious having seen him give evidence.

23 It seems that Keith has progressed the matter reasonably quickly recently and the proceedings were commenced some two years after he attained his majority. In the circumstances I am satisfied that there has been adequate explanation having regard to his lack of skills and the limited help available to him from any adult.

Eligibility of the plaintiffs’

24 The plaintiffs are children of the deceased and accordingly are eligible persons. 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."

The plaintiff Colleen Fraser

25 Colleen is years 19 years of age and she gave birth to her first child about a month ago. She lives with her fiancée, Shane Robbins, in a home unit which they rent from Housing Tasmania. They plan to marry in October 2003 and intend to remain living in Devonport as they regard Tasmania as their home. The only asset which Colleen and her fiancee have is a second-hand car which they recently purchased with funds borrowed from Shane’s parents of $3,500. Colleen also has a $500 debt to Centrelink. She will receive $10,000 from her grandmother’s estate when she reaches 25 years of age.

26 Colleen previously worked on casual basis at a local Subway shop in Devonport. Her fiancee is a trainee with a recycling firm in Devonport and earns approximately $400 gross per week in wages. All of their income is used in expenses which have increased now that they have a young child.

27 It is necessary to see how Colleen says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. Apart from obvious matters such as the total lack of assets Colleen wants to provide some secure accommodation for the family and not have to rely on government housing. There is evidence that she would be able to obtain that a three-bedroom home in Devonport for about $120,000. She also wishes to further her education by obtaining some qualifications so she can return to work in due course once her child is at an appropriate age. She wishes to do a Diploma in Business Administration because she feels she could work well in that area and the cost for a course would be in the order of $3,930. It will take some time to complete such a course and she will need support during that period.

28 When one looks at these needs I note that one would not normally expect a child to be provided with a debt free home. In Shearer v The Public Trustee and Hawke v The Public Trustee, Young J, (unreported, NSWSC, 29 March 1998), his Honour had this to say:-

"The community's attitude is not to be judged by a feeling as to whether it is morally wrong for a person to leave property otherwise than to her spouse or children. One must really look at the obligations to provide for persons who have some dependants.
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. "

29 I will refer to the situation of Keith and defendant before returning to the question of what might be an appropriate provision.

The plaintiff Keith Fraser

30 Keith Fraser is 20 years of age. He has a casual job as a person who retrieves shopping centre trolleys and returns them to the shopping centre. He currently earns $400 per week cash in hand and he lives with his girlfriend in rented accommodation which they expect to have to vacate shortly. He has absolutely no training or life skills and clearly in a need some assistance in this regard. He has no assets of any substance but he will receive $10,000 from his grandmother’s estate when he reaches 25 years of age.

31 Keith advances a number of matters for consideration in respect of the way he says he has been left without adequate and proper provision for his maintenance, education and advancement in life. Because they have no furniture he and his fiancee would like to spend approximately $10,000 to $15,000 on furniture for an apartment and to pay the bond on an apartment which they could rent. He also wishes to buy a second-hand car for $5,500 and will require driving lessons to enable him to enable him to apply for a driving licence. The cost of a car and driving lessons is likely to be the order of $10,000.

32 Keith needs dental work and provision for medical expenses in the order of $5,000 to $7,500. One important matter for him is that he wishes to do a de-tox programme in order to change his lifestyle. This he would do by attending a full-time course for a week and a part-time course over the following year. Assistance during this period for his living expenses would be appropriate. He also wishes at some stage to purchase a house but given his current employment there is no way that he would be able to borrow funds to purchase a house, particularly in that area.

The position of the defendant

33 The defendant, Judith Fraser, is 47 years of age, single and has no dependent children. She suffered a stroke approximately 20 years ago and has difficulty in standing or walking for lengthy periods. She has difficulty lifting items and suffers pain in doing ordinary everyday tasks. Due to her physical problems she has been unable to learn any income since 1992. The only employment she has had since then was for several weeks on a casual basis in about 1996.

34 The defendant has a share and investment portfolio presently worth $433,945.58. She has an AMP bank term deposit of $108,000 and a St George Bank term deposit of $138,799. In addition she has about $10,000 in her current accounts. She owns her house at 24 Hennie Crescent, Ormeau, Queensland which is valued at $225,000. She has a caravan worth $24,500 and a motor vehicle worth $21,000.

35 At the time the defendant married the deceased she had assets worth $100,000 mainly consisting of cash and shares. She also owned a car, furniture and personal effects. After the deceased’s death she received in her own right a payment of $147,300 from the Dust Diseases Board and she also spent $129,500 on improvements to the Terrigal house. The assets which she now owns have substantially been received from the deceased during the three years that they were married and as a result of his will.

36 She has income from her investments of $24,145 per annum and she also receives a continuing payment from the Dust Diseases Board.

Consideration of the application

37 Widows’ claims are frequently the subject of applications in this Court. The Court of Appeal in Golosky v Golosky (unreported 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the Court of Appeal on 24 April 1986. There his Honour said,

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

38 In this case the defendant and the deceased were married for three years before the deceased’s unfortunate death. In these circumstances the traditional tests which are referred to above are not relevant. An important consideration here is the $100,000 which the defendant contributed to the assets of the deceased and which are now all held by her. There is also the payments of $129,500 on the house at Terrigal. The defendant herself has recognised that there has to be provision for the children. During the times when she was able to be in contact with the children she made payments to them to help with their education and upbringing. The amounts she paid totalled $16,930 and given that she swore that she had checked these with her bank records I am prepared to accept her evidence in this respect. She also spent $25,000 on education fees for Keith in respect of his year at the Armidale School. She also indicated in evidence that she had been intending to provide to the children $60,000 when they attained their majority but had put this proposal aside once the court case had been commenced.

39 Clearly there should be some proper provision for both plaintiffs and this can be accommodated out of the assets of the defendant. This then raises the question of notional estate and also the provisions of section 28 (5) of the Family Provision Act. As the estate has been distributed to the defendant the court if it is satisfied that provision ought to be made may pursuant to s 24 designate any of the property of the defendant as notional estate.

40 Section 28 includes further restrictions on the power of the Court to designate property as notional estate. Section 28(5) provides as follows:

"On an application in relation to a deceased person, being an application:
( a) made pursuant to an order under section 16 allowing the application to be made; or
(b) for an order under section 8 for additional provision, the court shall not make an order designating property as notional estate of the deceased person by reason of a prescribed transaction or a distribution unless it is satisfied:
(c) that:
(i) the property was the subject of the prescribed transaction or distribution;
(ii) the person by whom it is held holds the property as a result of the prescribed transaction or distribution as trustee only; and
(iii) the property is not vested in interest in any beneficiary under the trust; or
(d) that there are other special circumstances (including, in the case of an application made as referred to in paragraph (a), the incapacity during any relevant period, of the person by or on whose behalf the application is made) which justify the making of an order so designating the property."

41 In relation to this case the relevant section is 28(5)(d). There is one asset in the estate, namely, a BT Pacific Basin investment having a present value of $27,148.69 which has been distributed which the defendant still holds and which was part of the estate of the deceased. However it was not the subject of a prescribed transaction and accordingly would not be available to be designated as notional estate without the requirement for special circumstances which appears in subsection (d). The jointly owned home is no longer available and it clearly was the subject of prescribed transactions. There are a series of shares in BHP, National Australia Bank and Southcorp and other investments which were purchased with the proceeds of sale of some investment bonds which themselves had been purchased in the name of the defendant immediately before the deceased died. I would infer that the funds came from the deceased’s payout and thus the purchase of the investment bonds would be a prescribed transaction. It is to be noted that the property which may be designated notional estate under s 23, if there has been a prescribed transaction unlike s 25(5)(c)(i), is not limited to the property the subject of the prescribed transaction.

42 Apart from stating incapacity as a special circumstance sub-section (d) gives no other indication of what constitutes such special circumstance. However it is clear that s 27 applies when a claim is made both before and after the time limited by s 16. Section 28(5) in a case where an extension is to be allowed may thus be thought to impose either a further requirement over and above the matter, which a court will consider under s 27 or merely a requirement that a circumstance be "special". In s 28(5)(d) the word "other" is used in describing "special circumstances". That I think is grammatically a reference to the matter appearing in s 28(5)(c). It may be that the matter in s 28(5)(c), namely a discretionary trust, was thought to be a special circumstance.

43 A question which arises is whether a circumstance which may be taken into account under s 16 can also be taken into account as a special circumstance under s 28(5)(d). In Dare v Furness (1998) 44 NSWLR 493 Cohen J decided that infancy was a factor which could be considered, though not determinative, under s 16. He also held, at p 503-4, that infancy is a special circumstance under s 28(5)(d).

44 I have earlier recounted a number of matters which when added to the fact that the plaintiffs were for a substantial period of time infants was a sufficient explanation for the delay. In respect of Colleen her infancy continued up until the commencement of the proceedings. In respect of Keith his infancy continued up until the two years before the proceedings. I have referred to the fact that Keith suffered substantial disadvantages in his later education and the life which he led on the streets and in other straightened circumstances. Bearing in mind these factors I think there are special circumstances in respect of Keith.

45 Section 27 of the Family Provision Act is in the following terms:-

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:


(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

46 So far as reasonable expectations are concerned the defendant herself had expected to hold some of the property of the deceased for the children. Having regard to substantial funds that she acquired from the deceased in the short period of the marriage it does not seem to me that any relevant orders would interfere with any reasonable expectation which she might have. In my view the substantial justice and merits involved in making an order of the nature which I contemplate favour the making of an order.

47 There is evidence from the defendant that her investment portfolio which I have earlier recounted was worth $433,945.58 has lost value to the extent of $45,867.46. This has to be taken into account and I will consider it in fixing on the amount of the award and in determining what property should be designated as notional estate. I also note that there are prescribed transactions in respect of the jointly owned home. The transfer to the defendant of her one half share as joint tenant was expressed to be “for natural love an affection” and she gave no consideration for it. Similarly the failure of the deceased to sever the joint tenancy prior to his death, given his then medical circumstances, clearly would make it a prescribed transaction. I also note the matters in relation to the purchase of investment bonds immediately prior to the death of the deceased.

48 As the estate has been reduced by prescribed transactions or has been totally distributed it is insufficient to allow the making of an appropriate provision for the plaintiffs. Under s 28(2) of the Family Provision Act the court should only make an order designating as notional estate sufficient property to allow the making of the provision that in its opinion should be made. The defendant has a number of different investments and I will extend to her the opportunity to consider what property amongst her investments should be designated as notional estate.

49 This brings me back to the extent of the orders that should be made for the plaintiffs. So far as the plaintiff, Colleen, is concerned she is at a young age, she has a child to support and has no assets. I accept that she has a real need to be able to advance her education so that she may obtain better employment once she is able to re-enter the work force. It will no doubt take her some time to complete her studies and obtain the required certificates which she has spoken of in her evidence. She needs to purchase furniture in the immediate short term. It would be appropriate for her to have some small sum which might in the future be used as a deposit when she is able to earn sufficient to purchase a house. In the circumstances I think a sum of $100,000 is appropriate.

50 In respect of the plaintiff, Keith, I have already outlined the sums which he needs for furniture, rental bond, car, driving lessons and health requirements. I do not think it is realistic at present for Keith to expect to be able to purchase a house in the area where he is living. I think it is important that he have sufficient funds to be able to have appropriate treatment for his drug abuse. I would infer from his situation that Keith does not have any private health insurance. It is for this reason that he is contemplating a public system de-tox programme. The provision of further funds will perhaps enable him to have far better rehabilitation in respect of his drug problem. In the circumstances I propose to give him a legacy of $100,000.

51 There should be an order that the defendant pay the plaintiffs’ costs on a party and party basis but otherwise I direct the parties to bring in short minutes in order to reflect the matters referred to in this judgment.

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Last Modified: 07/10/2003