Gadd v Simons

[2004] NSWSC 440

CITATION:	Gadd v Simons [2004] NSWSC 440 revised - 26/05/2004
HEARING DATE(S):	27/04/04, 28/04/04
JUDGMENT DATE:	25 May 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph
CATCHWORDS:	Family Provision. Application under Family Provision Act by two grandchildren. Discussion of dependency. Order made for legacies in favour of the plaintiffs.
PARTIES :	Janelle Gadd v Joan Margaret Simons Richard John Gadd v Simons
FILE NUMBER(S):	SC 2272/03; 2469/03
COUNSEL:	J. Wilson SC for plaintiffs M. Gorrick for defendant
SOLICITORS:	Eleanor Murphy & Co for plaintiffs Wilkinson Throsby & Edwards for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Tuesday 25 May 2004

2469 of 2003 RICHARD JOHN GADD v JOAN MARGARET SIMONS AND GWENDA LOUISE BROWN
2272 of 2003 JANELLE GADD v JOAN MARGARET SIMONS AND GWENDA LOUISE BROWN

JUDGMENT

1 MASTER: This is the hearing of two applications under the Family Provision Act 1982 (NSW) in respect of the estate of the late Gwendoline Joyce Horsley who died on 19 October 2001 aged 85 years. Her two husbands had predeceased her and she was survived by two of her three daughters (the defendants in the proceedings) and her seven grandchildren two of them being the children of her deceased daughter. The two grandchildren of her deceased daughter are the plaintiffs in the two proceedings which I have ordered to be heard together with the evidence in one to be evidence in the other.

Will of the deceased

2 The deceased made her last will on 23 July 1999 under which she left the whole of her estate to the defendants equally and appointed both of them executors and trustees.

Assets in the estate

3 The assets in the estate at the date of death amounted to $557,859.96 with debts and expenses of $12,665.05. The estate was reduced to cash and was distributed equally to the defendants. The distribution took place before the proceedings were commenced but also before the time limited for making applications under the Act had expired.

Family History

4 The deceased was born in 1916 and on 12 June 1940 she married William Barry. Joan Simons, her eldest daughter was born on 14 March 1941. Gwenda Brown, her second daughter was born on 22 November 1942 and Patty Gadd, her third daughter was born on 5 January 1945. Patty Gadd is the mother of the plaintiffs and the other daughters are the defendants.

5 William Barry the deceased’s first husband died on 11 September 1962. Thereafter the deceased’s daughters in turn left home to get married. Joan Simons left in 1964, Gwenda Brown in 1965 and Patty Gadd in 1966. In 1968 the deceased married Kenneth Horsley.

6 The first plaintiff, Janelle Gadd, was born on 12 February 1971 and her brother, Richard, was born on 13 April 1973. The plaintiffs’ parents purchased a home at Vaucluse in 1976 and the plaintiffs resided there with their parents. For many years the deceased had lived with her husband in Bondi and in 1981 she sold a large block of flats in which she had an interest and moved to Bowral to live with her second husband. At this time the deceased made a gift of $20,000.00 to each of her three daughters. In 1982 the deceased’s second husband, Kenneth Horsley, died. In 1983 the deceased started to make regular payments of approximately $750.00 per month to each of her three daughters. There was probably some form of assignment involved but the object was to reduce the deceased’s income and spread it between her daughters who paid tax on the money. These payments continued until 1987 at about the time of the death of her youngest daughter.

7 On 28 October 1987 the plaintiffs’ mother, Patty Gadd, died. She had been sick for a long time. At this stage Janelle was 16 years of age in Year 11 at Kincoppal Convent, Rose Bay, and Richard was 14 years of age in Year 9 at Waverley College, Waverley.

8 In January 1988 an arrangement was made for Richard to attend Chevalier College at Bowral as a boarder. This arrangement was made with the deceased and she paid his fees for some two terms while he remained at the College at Bowral visiting her at the weekends.

9 In July 1988 Richard moved back to his live with his father and sister in the family home at Vaucluse. He resumed his high school education at Waverley College. The deceased apparently continued to pay his school fees after his father’s death.

10 On 4 March 1989 the plaintiffs’ father, John Gadd, married Michelle Gadd (nee Cook). This caused distress to the deceased who thought that he had remarried too soon after his first wife’s death.

11 It was only 16 weeks later on 13 April 1989 that the plaintiffs’ father died. Fortunately for the plaintiffs their stepmother continued to look after them and they continued living with her in the Vaucluse home.

12 In 1989 Janelle left Kincoppal Convent and attended technical college. By the end of the year she left the technical college and was working at the Commonwealth Bank of Australia in Paddington.

13 Between February and July 1990 Richard Gadd lived with Joan Simons and her family at Killara on the North Shore. He moved out in mid 1990 to live with friends.

14 In late 1990 the plaintiffs’ father’s estate was distributed. Each plaintiff received one third of his distributable estate with the other third going to his widow. Richard Gadd used his inheritance together with a loan of $15,000.00 to buy a unit for $130,500.00 at 6/71 Curlewis Street, Bondi. Janelle Gadd used her inheritance to buy a unit at 6/46 Frances Street, Bondi and at the time of the purchase it was unencumbered. In January 1991 Richard moved into his unit at Bondi just before his 18th birthday. In March 1991 he enrolled in an Arts degree at the University of New South Wales but subsequently discontinued that degree and began to work full time as a carpet layer. In late 1991 he enrolled in the SAB course but he did not complete the course.

15 In 1993 the deceased sold her property in Bowral and moved into a retirement villa at Kenilworth Gardens. At that time she gave each of seven grandchildren a gift of $5,000.00.

16 In 1995 Janelle entered into a de facto relationship with Dennis Funes. Their daughter, Natalie, was born in 1999 and their son, Daniel, in 2001.

17 The deceased made her last will on 23 July 1999 and died on 19 October 2001. Probate was granted on 1 February 2002 and the estate was distributed between March and June 2002. The defendants received approximately $270,000.00 each. Janelle commenced proceedings on 9 April 2003 within time and Richard’s proceedings were filed on 17 April 2003 and were within time.

Eligiblity

18 The plaintiffs are grandchildren of the deceased and will be eligible persons if each grandchild was, at any particular time, wholly or partly dependent upon the deceased.

19 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following:

“His Honour concluded that ‘dependent’ meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of s 6(1) the definition of ‘eligible person’, par (d)(i). In the present case, however, only financial dependence is relied on and I approach the matter on that basis. ‘Dependent’, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in ‘deciding whether or not there is dependency the factors to be considered are past events and future probabilities.’ While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency.”

20 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency resulting from a homosexual relationship between a party and the deceased was emotional. The Court rejected a submission that dependency may be based solely on the existence of the relationship without regard to any element of financial dependence.

21 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the Court once again considered the meaning of dependency. At page 346 the Court had the following to say:

“I would respectfully disagree with the master in both respects. The word ‘dependent’ is an ordinary English word, and whether a person is or has been wholy [sic] or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance, young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that ‘”Dependent” in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.’ If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McLelland J said in Re Fulop Deceased or to 'other forms of dependence analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense, they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father, as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother, when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example, by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

22 In McKenzie v Baddeley (Unreported, NSW Court of Appeal, 3 December 1991) his Honour Mr. Justice Meagher, although in the minority, further discussed dependency and described it as “financial economic or material dependency not a mere emotional dependency”. Importantly in that case the majority held that the word “partly” in the phrase “partly dependent” does not mean “substantially” rather it suggests “more than minimally” or, perhaps, “significantly”.

23 It is abundantly clear from the aforementioned comments that dependency is a matter to be determined from all the facts in the case.

24 I turn to the factual situation in respect of dependency of each plaintiff. I will first deal with the situation of the plaintiff, Janelle.

25 The dependency alleged by Janelle is that when she was a young child the deceased cared for her for a period while her mother was working and her father was sick after suffering a heart attack and having undergone a triple by-pass. This was in 1976 when he was unable to work for six months. At that time Janelle was 5 years of age and Richard was 3 years of age. This evidence was given by the defendant Joan Simons who at that time was married and living in Killara.

26 According to Richard’s evidence his mother and father returned to Australia in 1969 and initially lived in the deceased’s unit in Bondi. In 1970 they purchased a unit at 1/101 Beach Road, Bondi and the children were born, as I have mentioned in 1971 and 1973 respectively. In his affidavit sworn 30 May 2003 at paragraphs 13 and 14, Richard said the following:

“My mother continued her close relationship with Gran. Gran often shared the rearing responsibilities of Janelle and I so as my mother could return to work.
As a child I spent many days at Gran’s unit.”

27 The evidence in Janelle’s affidavit sworn 16 May 2003 is in paragraph 11 where she says, “My brother and I spent a lot of time together at her unit”. In paragraph 12 she said:

“My father worked as a plumber. My mother worked part time in a bank. My father suffered from a heart problem and although he worked fulltime he did not undertake the heavy work associated with the work of plumbers.”

28 This is the total of the affidavit evidence given on this subject. The plaintiffs’ evidence was not challenged by the defendants and, indeed, the evidence of Joan Simons which I have quoted, supports these basic facts about the six month period in 1976 after the plaintiffs’ father suffered a heart attack and had a triple by-pass.

29 It can be seen from the evidence that the relevant period would appear to be at least six months and that the plaintiffs were at times looked after by the deceased at her unit. It is of importance that the children were five and three years of age and accordingly would have needed full time care. Although their father was available, he had clearly been very ill given the extent of his heart operation and I would have thought the extent of dependency could be described as more than minimal. From the fact that the period of care was some six months, the children were young and their father had been extremely ill, one could infer that their father would have had difficulty looking after the children on his own when their mother was at work. Plainly their mother had to go to work because their father could not continue to earn an income in his own business.

30 In these circumstances I think that there is an appropriate time of dependency both from a factual and emotional point of view. Accordingly Janelle is an eligible person.

31 As far as Richard is concerned the same facts apply but there are also other reasons why he might be an eligible person.

32 Before I turn to deal with Richard’s education I should mention another matter which was raised in the evidence. That is the fact that between 1983 and 1987, $750.00 was paid to each of the daughters of the deceased. Although this seems clear there is no evidence of the mother’s financial situation which would lead to the conclusion that the mother was dependent upon the receipt of this sum to support her children and thus in some way prove that the plaintiffs in that respect were dependent upon the deceased.

33 Richard is in a different situation because he gave evidence of conversations between his father and the deceased that took place in his presence. These conversations occurred in January 1988 after the death of Richard’s mother. At that time the deceased was living at Bowral and she indicated that if Richard went to Chevalier College at Bowral she would pay his school and boarding fees. That had some attraction for her because Richard could spend time with her on weekends. On this there was agreement and Richard did in fact spend two terms attending Chevalier College as a boarder. There were some occasions when he was able to get back to Sydney to see his father and stepmother but his school breaks and weekends were spent predominantly with the deceased at Moss Vale. This continued until July 1998 when Richard became a little unsettled and wanted to return to his school at Waverley College. He then left Chevalier College and returned to Waverley College and, according to the conversations the deceased had with Richard, after Richard’s father died she continued to pay his school fees at Waverley College. There was a period between July 1998 and the death of Richard’s father when his father paid Waverley College school fees.

34 It is also clear from the evidence that after the death of his father, Richard continued to stay with the deceased at Moss Vale during the school holidays for periods of a few days up to a week. This was particularly important to him during the time he was doing his Higher School Certificate.

35 Although there was some criticism of the way the evidence given by Richard unfolded in his affidavits I am satisfied that his evidence is reliable and I accept it. Clearly it fits within the circumstances which occurred and takes account of the natural desires of his father and his grandmother, the deceased.

36 Both plaintiffs are therefore eligible persons.

37 However under s9(1) of the Act it is necessary that the Court first determine whether there are factors warranting the making of the application. The courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

“Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other: otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (cf the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.”

38 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

39 These principles have been applied at first instance for many years. In recent times further attention has been paid to this matter as seen in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, by Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that in this regard there may be some flux in the state of the law.

40 In respect of Richard it is apparent that from the history I have recounted above that there was a close relationship between the deceased and Richard’s mother. There was the period when he was young and his father was ill when the deceased took an active part in his care. There was the time when the deceased had Richard close to her when he was a pupil at Chevalier College at Bowral and there was continual contact between Richard and the deceased even after he returned to Sydney and after his father had died. There is other evidence that after his mother was diagnosed with acute leukemia in 1986 that eventually led to her death the family spent a lot of time at Moss Vale with the deceased. At that stage Richard’s problems did not end and during the time his mother was suffering from leukemia his father had another triple by-pass and another heart attack. In October 1987 Richard’s mother died and the evidence is that he and Janelle spent time after her death at the deceased’s home in Moss Vale.

41 There were submissions that I should consider matters such as the plaintiff’s situation and needs as part of the exercise of deciding whether or not there are factors in the making of the application. I think this is inappropriate. Further it is to be noted that the factors are those, which added to the facts which render the plaintiff an eligible person give him or her the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. As his Honour said, the sub-section is directed at the plaintiff’s status as applicant.

42 In my view Richard is such a person. In the event a different view of factors warranting is taken I will go on to consider the likelihood of whether it is likely to succeed.

43 As far as Janelle is concerned, she had the earlier contact to which I have referred but she did not have an occasion like Richard of living close to the deceased at Moss Vale. However, she was involved in contact with the deceased following the illness of her mother and her mother’s ultimate death. She gave evidence that following the death of her mother and father she used to call on the deceased from time to time and she had a close and affectionate relationship with her. When she gave birth to her first child she took her to Bowral to see the deceased. On the occasion of her second pregnancy she tried to go down to see her grandmother again but according to Gwenda Brown the deceased was not well enough to receive visitors. Apparently what happened was that the deceased was in such a painful state with regard to her arthritis that she did not want to see any of her grandchildren and any of her daughters’ spouses.

44 It is clear that there has been great tragedy in both plaintiff’s lives as a result of the illness of their mother with leukemia, her death and their father’s death shortly thereafter. The involvement of the deceased in the family and the support that she gave over the years I think indicates that on the traditional test Janelle is someone in respect of whom one would find factors warranting. As with Richard I will go on to consider her case to see whether some orders should be made.

45 In applications under the Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two-stage approach that a Court must take. At page 209-210 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 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.
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.”

Situation in life of Janelle Gadd

46 Janelle is 33 years of age and lives in a de facto relationship with her partner, Dennis Funes. They have two children aged 5 years and 2-1/2 years. Janelle does not work and is a full time wife and mother. She performs some services for her partner’s transport company and wages are credited to her in the books of the company.

47 Janelle’s assets are as follows:-

6/45 Frances Street, Bondi Beach $520,000.00
Contents $10,000.00
Jewellery $ 3,000.00

48 Janelle has a mortgage on her property at Bondi amounting to $86,331.00. She has a number of card and overdue household accounts and other debts totalling $12,966.26.

49 Janelle actually receives no money from the business and she used to receive a parenting payment up until January 2004. That apparently ceased because her partner was late in lodging his tax returns.

50 There is no evidence of her husband’s total income as a result of his evidence being disallowed on the hearing. It is apparent from her earlier affidavit that her financial situation is deteriorating and the accumulation of debts clearly shows a difficult situation.

51 I have previously mentioned the relationship between Janelle and her grandmother, the deceased. There is no criticism that can be levelled at her in this respect. Janelle received a payment of $5,000.00 like all the other grandchildren and presumably a payment of $1,000.00 when she turned 21 years which was her grandmother’s practice.

52 It is necessary to see how Janelle says she has been left without adequate and proper provision for her maintenance, education and advancement in life. In essence Janelle submits that she needs a fund to discharge her present liabilities as well as to tied her over until she and her partner get back on their feet. Her partner has a property in Victoria which has decreased in value and he apparently has substantial debts arising chiefly from his trucking business which would mean that if the property was sold there would be no proceeds of sale available.

Situation in life of Richard Gadd

53 Richard is 30 years of age and lives with his girlfriend who recently moved in with him. He has no dependents and his girlfriend works as a solicitor earning an income of approximately $50,000.00 per annum. For some time now Richard has worked as an owner builder on one of his properties at Bondi. That renovation work has almost come to an end. In the past Richard has been able to engage in employment in a number of different areas. He regularly works as a lifeguard and he also does labouring jobs on building sites. He is part way through his Diploma of Building Studies at Sydney TAFE College and has two years left to complete that course. Once he has completed the present renovation I have no doubt he will obtain some other appropriate employment while he continues that course which involves one full time day and one evening a week. Richard’s assets are as follows:-

3/2 Clyde Street, North Bondi $800,000.00
6/71 Curlewis Street, Bondi $500,000.00
Contents $10,000.00
Land Rover $6,000.00
Cash Nil
Work tools $5,000.00

54 Richard’s liabilities appear to be as follows:

Mortgage on 3/2 Clyde Street $380,000.00
Mortgage on 6/71 Curlewis Street $360,000.00
Outstanding bills in respect of
Renovations $28,000.00
Westpac fees $ 5,193.13
Loan from his aunt to finance
the renovations $35,000.00
Loan from his partner Corina
Elliott $ 5,000.00

55 There was criticism of Richard’s evidence and his credit in that it was said that he was not particularly truthful in loan applications as to the purpose for the funds. That may be so but having seen Richard in the witness box I am satisfied that he has been honest with the court as to the state of his present situation and I accept his evidence.

56 Clearly Richard had a good relationship with his grandmother and as with his sister he received amounts of $5,000.00 and $1,000.00 from her during her lifetime.

57 It is also necessary to demonstrate how Richard says he has been left without adequate and proper provision for his maintenance, education and advancement in life. It is plain that through his own endeavours and with a start from the inheritance he received from his father that Richard has been able to put himself in a better financial position than his sister. This is no doubt because of the lack of responsibilities and family. He is not certain which property he will reside in but clearly one of them will be sold. That sale will reduce his total indebtedness to a more manageable level where he and his girlfriend can live in one or other of the properties while Richard continues his studies and works part-time. He cannot make a decision on this matter until the renovations are completed and he can make a realistic appraisal of the value of the properties. The submissions made on Richard’s behalf are that it would be appropriate for him to receive an amount of $45,000.00 in order to clear his two private loans and his Visa account at this stage.

Discussion of the claims

58 These are claims by two grandchildren of the deceased and in the ordinary case they should be looked at in that light. In this particular case there are some other matters which should be borne in mind. The deceased expressly disapproved of the plaintiffs’ father remarrying so soon after the death of their mother. Apparently she took a stand that if that happened then no benefit was to flow to that part of the family and only her two surviving daughters should take under her will. The sins of the son-in-law now seem to be visited on the grandchildren. The decision by the deceased is somewhat surprising given the closeness of the relationship with her youngest daughter and the two grandchildren themselves. It was a surprising decision which works to the benefit of the defendants.

59 It is necessary for the court to take into account the circumstances of others having a claim on the bounty of the deceased. In this case the only two persons are the defendants. Neither defendant has put forward to the court any information as to their financial circumstances. The court can thus assume that they do not want their financial circumstances taken into account when the court exercises it discretion and considers the plaintiffs’ claims. Similarly although they have devoted their affidavits to dealing with the plaintiffs’ claims they have not detailed their own involvement with the deceased. However, it is plain from the evidence given including the oral evidence that they had an appropriate relationship with their mother and I have already referred to the fact that they were the only ones their mother would have to see her in her final days.

60 In my view the plaintiffs should each receive a legacy of $45,000.00.

61 The estate has been distributed. Under s 24 of the Act if the Court is satisfied that provision should be made, and I am so satisfied, an order can be made that property be designated as notional estate. Section 27 of the 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.”

62 The plaintiffs’ claims were commenced within time and there is nothing that appears in the evidence that generated any expectations in relation to property. So far as the substantial justice and merits are concerned, I have earlier referred to the fact that the defendants have not put before the court their financial situation. In these circumstances the court can assume that any order designating property as notional estate would not have a financial effect upon them. There are no other matters that require consideration under this section. Accordingly I am satisfied that it is appropriate to designate their property as a notional estate. Each defendant received a payment of $137,595.00 on 16 April 2002 and a payment of $135,000.00 on 29 January 2003. In respect of Joan Simons, she still has from those funds a credit balance in her Macquarie Bank account of $210,000.00. That is an appropriate item of property which can be designated as notional estate. As far as Gwenda Brown is concerned she has applied the funds distributed to the construction of a new house on their property at “Hanover” Oldbury Road, Sutton Forrest, New South Wales. That property is owned jointly by her with her husband, Bernard George Brown, and accordingly her interest in that property can be designated.

1. I order that each plaintiff receive a legacy of $45,000.00
2. I order that interest be payable on the legacies at the rate provided for under the Wills Probate & Administration Act 1988 (NSW) if it is not paid within one month from these orders and on from that date.
3. The plaintiffs’ costs on a party and party basis and the defendants’ costs on an indemnity basis be paid or retained out of the estate of the deceased.
4. I designate as notional estate
(a) the interest of Gwenda Louise Brown in the jointly owned property “Hanover” Oldbury Road, Sutton Forrest, New South Wales.
(b) the bank account in Macquarie Bank Ltd in the name of
Joan Margaret Simons
to the extent necessary to meet the legacies, interest and costs referred to above.
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Last Modified: 05/27/2004