Gardiner v Gardiner - [2014] NSWSC 435

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gardiner v Gardiner [2014] NSWSC 435
Hearing dates: 30 & 31 July 2013 and 18 October 2013
Decision date: 14 April 2014
Jurisdiction: Common Law
Before: Robb J
Decision:
(1)Grant administration of the estate of the late Dulcie Eva Gardiner under s 91(2) of the Succession Act 2006 (NSW) to the defendant, Raymond James Gardiner, for the purpose only of permitting the application in these proceedings to be dealt with.
(2)Order that the will of the late Dulcie Eva Gardiner made on 5 November 1989 be varied so that the assets of her estate available to be distributed to the beneficiaries, including after payment of the costs referred to in order (3), be distributed in the proportions -
(a)Janette Susan Gardiner - 55 %
(b)Raymond James Gardiner - 19 %
(c)Dianne Joan Bowman - 26 %.
(3)Order that the costs of the parties to the proceedings be paid out of the estate of the late Dulcie Eva Gardiner on the trustee basis, with the effect that any party who has paid legal costs from the party's own funds shall be reimbursed, save that the plaintiff shall bear personally $30,000 of the legal costs that she has incurred in these proceedings.
(4)Order for the return of exhibits and subpoenaed material as set out in par 219.

Catchwords: SUCCESSION - family provision and maintenance - failure by deceased to make sufficient provision for the plaintiff - whether the other beneficiaries circumstances and needs reduce the plaintiff's claim
Legislation Cited: Succession Act 2006 (NSW) ss 57 - 61, 91
Family Provision Act 1982 (NSW) ss7, 9
Cases Cited: Aubrey v Kain [2014] NSWSC 15
Dudic v Jakovljevic [2014] NSWSC 169
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Phillips v James [2014] NSWCA 4
Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191
Grey v Harrison [1997] 2 VR 359
Alexander v Jansson [2010] NSWCA 176
McCosker v McCosker (1957) 97 CLR 566
Butler v Morris [2012] NSWSC 748
Gorton v Parks (1989) 17 NSWLR 1
Slack v Rogan; Palffry v Rogan [2013] NSWSC 522
Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Category: Principal judgment
Parties: Janette Susan Gardiner (plaintiff)
Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner (defendant)
Representation:
Counsel: J J Loofs (plaintiff)
M B Evans (defendant)
Solicitors: Carroll & Associates (plaintiff)
Kitchington & Associates Solicitors (defendant)

File Number(s): 2012/170377

Judgment

The plaintiff in these proceedings is Janette Susan Gardiner ("Ms Gardiner").

Ms Gardiner was the daughter of the late Dulcie Eva Gardiner, who died on 30 May 2011 aged 86 years (the "deceased"). The deceased made a will on 5 November 1989. The deceased had two other children, Raymond James Gardiner ("Mr Gardiner"), and Dianne Joan Bowman ("Ms Bowman").

The deceased's husband, James Dudley Gardiner, predeceased her. In that event the deceased's will appointed Mr Gardiner as the deceased's executor and trustee. Under the operative provision of the will, clause 4, the deceased bequeathed the whole of her real and personal property to her three children in equal shares as tenants in common.

By summons filed on 29 May 2012 Ms Gardiner made an application for an order under s 59 of the Succession Act 2006 (NSW) (the "Act") for provision for the maintenance, education and advancement in life of Ms Gardiner from the estate of the deceased.

As a child of the deceased, Ms Gardiner is an eligible person who may apply to the Court for a family provision order in respect of the estate of the deceased under s 57(1)(c) and s 59(1)(a) of the Act.

Mr Gardiner has not yet been granted probate of the will of the deceased. Ms Gardiner's application for a family provision order may nonetheless be made: s 58(1). Section 91(2) of the Act authorises the Court, if it is satisfied that it is proper to do so, to grant administration in respect of the estate of the deceased for the purpose only of permitting the application to be dealt with. By amended summons, filed by leave of the Court on 18 October 2013, Ms Gardiner added a claim under s 91 of the Act. I am satisfied that it is appropriate to make that order, which I will do in due course.

The issue in these proceedings is whether, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of Ms Gardiner has not been made by the will: s 59(1) of the Act. If that requirement is established, the Court may, having regard to the matters listed in s 60(2) of the Act, make such order for the provision out of the estate of the deceased as the Court thinks ought to be made for the maintenance, education or advancement in life of Ms Gardiner, having regard to the facts known to the Court at the time the order is made: s 59(2). I will consider below a legal question that has arisen concerning whether it remains the proper approach for the Court to decide the case by taking these two steps.

The assets of the deceased's estate consist of the family home at 28 Hyacinth Street, Asquith, together with a number of cash investments or other financial assets. As I understand it, the best evidence of the further assets is the inventory of property that was included in the application for probate of the deceased's husband's will, which is included as an annexure to Mr Gardiner's first affidavit. Probate of the late husband's will has not yet been granted, as the deceased was appointed as the husband's executor, but she died before the grant could be made. The Hyacinth Street property was given an estimated value of $750,000 for the purposes of the husband's inventory of property. The value of the further assets was estimated or known at $163,314 in total. That is the best estimate of the value of the further assets that may be found in the evidence.

Ms Gardiner's claim

The initial claim made by Ms Gardiner, as set out in her first affidavit sworn on 29 May 2012, was for an order that the Hyacinth Street property be vested in her absolutely as sole owner, and that she be paid a further sum of $300,000 to invest to provide her an income: pars 131 and 132. It is obvious that that relief cannot be granted to her because it would require the transfer to her of more assets than are owned by the deceased's estate, and would not allow for the payment out of the assets of the estate of any of the costs of the proceedings, including the costs of the executor, Mr Gardiner. When this problem was pointed out to her in cross examination, Ms Gardiner responded that she made the claim because she had originally been informed by Mr Gardiner that the estate's solicitor, Mr Kinchington, had estimated that the estate was worth $1.1 million (T 37.5). If that estimate had been made, and was accurate, Ms Gardiner's claim would still have been to virtually the entirety of the estate of the deceased. There is no independent evidence that any interested party, other than Ms Gardiner, had ever thought that the value of the estate was more than that which is estimated in the deceased's husband's inventory of property.

Ms Gardiner had moderated her claim by the time of final submissions. As stated in par 4 of her outline of argument, her submission was that her "financial needs are sufficient to consume the entire estate, however having regard to the position of her sister Ms Bowman such an order is unlikely to be made." She submitted that "the area of debate" is the amount of the provision that should be made in favour of Ms Gardiner, having regard to the positions of the other beneficiaries. Ultimately, in par 63, Ms Gardiner proposed two alternative forms of relief; namely, first that Ms Gardiner should receive sufficient provision to permit her to purchase accommodation, being $480,000, and have a buffer of $100,000; or in the alternative, secondly she should receive the entire estate less $100,000 payable to Ms Bowman.

Value of estate

The evidence does not establish the present market value of the Hyacinth Street property with certainty. On 6 December 2012, in a formal valuation, Ms Genevieve Wunsch of GW Valuers, ascribed a current market value of $625,000 to the property (Exhibit 1). The valuer stated that "pivotal factors" in the assessment included the triangular shape of the block, "the narrow frontage and the dated nature of the dwelling". It appears from an attached diagram that the property's frontage on Hyacinth Street is about 8 m (stated on the plan as 25' 3''). There was also in evidence a market appraisal of the Hyacinth Street property by Laing & Simmons Hornsby, as at 29 July 2013, at between $650,000 and $680,000 (Exhibit 2). Ms Gardiner responded to this evidence tendered by the executor by tendering a market appraisal by Ray White Hornsby, as at 23 October 2012, at "above $750,000" (Exhibit B). The market appraisals were received into evidence in accordance with par 21(a) of Practice Note SC Eq 7. Neither the valuer nor the two real estate agents were cross-examined. There was some inconclusive evidence that the Hyacinth Street property may be run down in various respects, and require some work to be done before its optimal market value could be realised.

The position that Ms Gardiner adopted in submissions was that the range of value of the property should be taken as being between $650,000 and $750,000, and that a neutral approach of adopting the midpoint of $700,000 was appropriate. Mr Gardiner's submissions suggested that the value of the property was "in the order of $650,000-$680,000". The Court is not in a position on the state of the evidence to determine the current market value of the property. Any attempt to do so would probably be pointless in any event, as sufficient time has passed from the dates of the valuation in particular, and also the market appraisals, to give rise to a real possibility that the real estate market in the Asquith area has changed. I propose to adopt a working value of $675,000 for the purpose of assessing the effect of the submissions that have been made by the parties, and any orders that may be made by the Court. However, I will bear in mind that in reality the value of the Hyacinth Street property will only be determined when the property is actually sold. The margin of error in adopting the working value that I have suggested is not huge, but may be significant given the relatively moderate value of the estate, and the fact that three beneficiaries have a claim on the estate.

I will work on the basis that the value of the estate is $840,000 in total, after rounding up the value of the further assets to $165,000.

Legal costs

The evidence is not entirely clear as to the amount of the legal costs that the parties will incur to the conclusion of the proceedings. I will consider the significance of the legal costs in more detail below. There is evidence that Ms Gardiner incurred costs of $118,324.90 up to 17 October 2013, and that she would be charged a further $11,000 to the completion of the hearing. I will adopt an estimated total of $130,000. Mr Gardiner's costs were estimated to be $58,000 on the basis that the hearing would conclude in two days. There was no evidence as to the additional costs that Mr Gardiner may incur as a result of the fact that the hearing went into a third day, and because of the delay between the final day and the initial hearing, it was appropriate for counsel to provide the Court with written submissions. If I, arbitrarily, assume that Mr Gardiner will incur the same additional costs as were estimated for Ms Gardiner (which is likely to be an underestimate), then Mr Gardiner's costs would be $69,000. The total costs on these assumptions would be $199,000, say $200,000.

If Ms Gardiner were to succeed on her claim, then it would usually follow that an order would be made that the costs of both parties should be paid out of the assets of the estate. Whether an order to that effect should be made in the present case is a question to which I will later return. If Ms Gardiner succeeds and the usual costs order is made then the value of the estate available for distribution between the three beneficiaries will be $640,000. Payment of the parties' legal costs out of the estate would, in this event, lead to a repayment to Ms Gardiner of the legal costs that she has already paid.

Ms Gardiner's asset position, and effect of legal costs

If Ms Gardiner had not instituted the present proceedings, she would not have incurred any legal costs. In that event the value of her current assets, other than her share in the deceased's estate, would have been approximately $60,000 plus the approximately $91,000 ($118,324.90 incurred, less $27,512.10 unpaid, equals $90,812.80) in legal costs that Ms Gardiner has already paid. The total is $151,000. Her third share in the value of the estate, on my working total of $840,000, would have been $280,000. Ms Gardiner's total current assets would in that event have been $431,000.

Ms Gardiner's position, as stated in her final written submissions, was that the value of her assets, putting aside her third share in the estate of the deceased, is $60,116, less a liability of approximately $28,000 for unpaid legal fees. Of the $60,116, $51,616 is in the form of cash, or cash equivalents, and $8500 is the estimated present value of Ms Gardiner's car. The net position is about $32,000. In her written submissions Ms Gardiner included $225,000 to $231,000 as the estimate of the value of her share in the deceased's estate, if the effect of the will is not altered by any order made by the Court. Ms Gardiner therefore assessed her total present assets as falling within the range $257,000 to $263,000.

The effect of the manner in which Ms Gardiner has dealt with the legal costs of the proceedings in reaching this estimate should be noticed. Ms Gardiner calculated the value of her one-third share of the estate at $225,000 to $231,000, after deducting from her assessment of the total value of the estate the amount of the legal costs of the proceedings (which she assessed as being $176,000). Ms Gardiner also deducted the unpaid portion of her own legal costs, being $28,000, from her current assets. There is, with respect, some confusion in this arithmetical approach to determining Ms Gardiner's current asset position. It was not arithmetically sound for Ms Gardiner to deduct the whole of her estimate of the legal costs of the proceedings in calculating the value of the one-third share of the estate, but then also to deduct the unpaid portion of the legal costs in calculating the value of her present assets.

I have, above, adopted a working value of the deceased's estate, on the assumption that the whole of the legal costs of the parties are to be paid out of the assets of the estate, of $640,000. As finally put in written submissions, Ms Gardiner asks the Court to make in her favour alternative orders with a value of $580,000 ($480,000 to purchase accommodation with a buffer of $100,000) or $540,000 (being the value of the estate after the payment of legal costs less $100,000 as a buffer payable to Ms Bowman). The first of these orders, if made, would only leave $60,000 as a buffer for Ms Bowman.

If the first order sought were to be made, then Ms Gardiner would be $149,000 better off than if she had not commenced her proceedings. In the case of the second order, she would be $109,000 better off. Those results assume that all of the legal costs of the parties are ordered to be paid out of the assets of the estate, and that the Court does not order Ms Gardiner to bear any portion of her costs.

Structure of Ms Gardiner's claim, and her personal situation

In her final submissions Ms Gardiner approached her burden of satisfying the Court that adequate provision has not been made for her by the deceased's will in terms of s 59 (1)(c) of the Act, and the nature of the family provision order that ought to be made under s 59(2), by first addressing the grounds upon which the provision that was made was inadequate; then by considering the provision that ought to be made in the absence of having regard to the competing needs of the other beneficiaries; and then finally by considering those competing needs and addressing the extent to which those needs might reasonably reduce the provision that would otherwise be made in her favour.

On the first of these issues Ms Gardiner's case was, in summary; she does not own her own accommodation, but is required to rent; she has no realistic prospect of gainful employment; she will never be able to buy a home for herself with her present financial resources; and she is suffering the effect of a traumatic instance of workplace bullying and harassment, which has left her with a debilitating psychiatric illness, being adjustment disorder with anxiety and depression of moderate and at times severe intensity, with secondary panic attacks, as well as a number of significant physical ailments.

I find, on the evidence before the Court, that Ms Gardiner has established each of these matters. Ms Gardiner relied upon reports and other communications from her doctors, particularly Dr Morse, and other health professionals. That evidence was admitted without objection. None of the health professionals who provided the evidence was required for cross-examination. Ms Gardiner adopted the same approach in relation to the medical evidence that was furnished on behalf of Mr Gardiner and Ms Bowman.

Ms Gardiner said in her affidavit evidence that she attended Asquith Girls High and completed high school to year 10 in 1970. In 1971 she did one year of a diploma in art at Hornsby Technical College. In 1973, when she was 18, she was hit by a car and suffered spinal and hip injuries. Ms Gardiner resumed her art course and completed her diploma in 1981. In the period up to October 2000 Ms Gardiner engaged in a number of forms of employment. That included working in an antique shop and a florist, managing a small antique and second hand shop, being partner in a landscape design and construction business, being a sales assistant, designing advertisements and advertising layouts for a business directory, being an employed graphic designer and illustrator, and then engaging in freelance work as an illustrator and graphic designer.

In October 2000 Ms Gardiner started work as a casual shop assistant at Oxford Art Supplies and Books Pty Ltd at Chatswood. She ceased that employment on 8 July 2005, and has been unemployed since that date.

During the period of this employment Ms Gardiner suffered bullying, sexual harassment and stalking which were the substantial cause of most of the psychiatric difficulties from which Ms Gardiner has subsequently suffered. As a consequence of these matters, Ms Gardiner was subsequently awarded, or received by way of compromise, a number of compensation payments that will be considered below. They also led Ms Gardiner to seek the medical assistance that has led to the evidence in these proceedings on that subject.

It is not necessary in these reasons for judgment to attempt to set out in complete detail all of the medical evidence, or all of the matters contained in the reports that have been provided.

Dr Peter Morse, consultant psychiatrist, saw Ms Gardiner on 23 January 2007 and provided a 16-page report. Dr Morse recorded a diagnosis of adjustment disorder with anxiety and depression of moderate and at times severe intensity (p 12). He said that: "The experience, the memory and shock of the various incidents at work especially the sexual harassment has caused ongoing emotional, physical and cognitive state that is best described as Post Traumatic Stress Disorder" (p 13), and on the same page: "Therefore I see the stress of the employment together with the physical illness extending over a period of at least four years as the cause of the psychobiological change that is anxiety and depression". Further, Dr Morse said at p 14:

"She is unable to work now because of a combination of her anxiety, depression, difficulty relating to people and fear of further infections. I believe the prospects of future work look poor given her age and her past experiences and ongoing fears and anxieties. There is some evidence of cognitive impairments secondary to depression and her physical state. It is highly unlikely she will ever work again. She used to engage in a small number of activities, which have ceased, and she leads an isolated, restricted life."

In his report Dr Morse recorded in some detail the physical and psychological difficulties that Ms Gardiner related to him during the consultation.

On 14 November 2007, in an update report provided apparently to Ms Gardiner's general practitioner, Dr David Hall, consultant psychiatrist, advised that he had originally diagnosed Ms Gardiner as having developed posttraumatic stress disorder as a result of the work-related events with secondary panic and agoraphobia. Dr Hall outlined the management of Ms Gardiner's symptoms that he had undertaken and concluded that the post traumatic stress disorder symptoms had "largely resolved", but she still suffered anxiety because of drawn out court and insurance processes and financial stress.

On 17 March 2008 Dr Robert Gertler, consultant psychiatrist, provided a Medical Assessment Certificate for the Workers Compensation Commission. Dr Gertler concluded (p 5) that Ms Gardiner was "suffering from a chronic post-traumatic stress disorder and major depression" and (p 7) Dr Gertler certified that the impairment was permanent.

Dr Morse provided a further report dated 6 December 2012. Dr Morse noted that at the time of his original consultation with Ms Gardiner he diagnosed her as suffering from adjustment disorder with anxiety and depression of moderate intensity. He repeated (p 10) his diagnosis that Ms Gardiner was, in December 2012, suffering from adjustment disorder with depression and anxiety of moderate to severe intensity. He concluded:

"In my opinion Ms Gardiner will continue to experience emotional distress and because of her emotional state, difficulties in relating to people and past experience she will continue to lead an isolated, very restricted life.

It is hoped that she will become less anxious and depressed with psychological therapy but this won't be marked...

She will never be employed again.

She will always have restricted social and recreational activities."

Dr Morse recorded (p 2) the substance of a conversation with Ms Gardiner that referred to the effort that Ms Gardiner had put in to looking after her parents before their respective deaths, and her expectation that her mother would reward her for her care, and that Ms Gardiner was "devastated" when she found out that the will split her mother's estate three ways. The record of the conversation made by Dr Morse was:

"She said that her mother realised the sacrifices she was making and although she was aware of the will that both parents made some years ago leaving the estate to Ms Gardiner and her two siblings. Ms Gardiner said her mother was anxious that she be rewarded for her care and had arranged to see a solicitor and left papers with him. Ms Gardiner said the solicitor delaying things and wouldn't keep appointments and was not available and the new (sic) was never made which she said her mother was upset about because she really wanted her to have the house and she would have somewhere settled to live in."

There is also medical evidence of various physical ailments of which Ms Gardiner has suffered, and will continue to suffer. It will be sufficient to record the following part of the report by Dr John Wan, general practitioner, dated 16 June 2013, who said that he had seen Ms Gardiner on a total of 13 occasions since 10 December 2013:

"In my professional opinion, [Ms Gardiner] suffers from several chronic conditions as listed below:

- Bone fragility, recurrent fractures and osteopenia

- Musculoskeletal issues as a result of her previous fractures and injuries - including chronic neck, lower back and hip pain

- Recurrent palpitations and tachycardia

- Mild chronic airways limitation disease

- Post traumatic stress disorder, anxiety and depression."

Mr Gardner did not mount any real challenge to these conclusions. As a practical matter I am fortified in accepting this evidence, as well as the other medical evidence, which I have considered but have not found it necessary to relate, by the fact that at least the earlier evidence was accepted by the persons who were responsible for awarding or agreeing to pay Ms Gardiner compensation as a result of her work experiences that have been outlined above.

Ms Gardiner provided evidence of the substantial level of care and support that she claims to have provided to both of her parents before their deaths: affidavit sworn 29 May 2012 pars 22 to 32, 38 to 45, 48 to 51, 56 to 81, 85 to 102, and 107 to 112. It is not necessary to relate the detail of that evidence. It is sufficient to note that Ms Gardiner said that the deceased suffered her first heart attack in January 2002 at the age of 75. Her father's health began to deteriorate in January 2003. Ms Gardiner provided some level of assistance to both of her parents from those times. Initially it appears to have been on an occasional, though regular, and on a needs basis. Both the deceased and Ms Gardiner's father asked her to look after them from mid-2005 onwards. The deceased's health deteriorated in May 2008. The father was diagnosed with Alzheimer's in 2008. Ms Gardiner said in par 70: "I had become a full-time carer for both of my parents, while continuing to rent in Willoughby". I infer from the context in Ms Gardiner's affidavit that this was some time after March 2009. The subsequent paragraphs of the affidavit show that this claim was not literally correct. Ms Gardiner provided increasing levels of care and support to her parents while living in Willoughby. Ms Gardiner moved into a small apartment in Hornsby in December 2009. That permitted Ms Gardiner to provide a higher level of support to her parents. The father died on 27 October 2010. Ms Gardiner stayed at the Hyacinth Street property for some periods, generally when Mr Gardiner was not present. The deceased died on 30 May 2011.

I infer from this evidence that, to the extent that Ms Gardiner may have provided a relatively intense level of assistance to her parents, which probably started at the end of 2009. It lasted about a year in the case of the father, and about a year and a half in the case of the deceased.

Ms Gardiner's evidence concerning the level of care that she provided to her parents was not challenged in any detail by Mr Gardiner, although Ms Gardiner did admit in cross-examination that her own medical condition placed a limit on what she could do in support of her parents (T 19.35).

The thrust of Ms Gardiner's evidence on the issue of providing care to her parents went not only to the level of care that she said that she provided, but Ms Gardiner put a positive case that her siblings did not provide any care or assistance to their parents. Ms Gardiner stated in her 29 May 2012 affidavit (pars 76 and 96) that Mr Gardner refused or neglected to help her parents, notwithstanding that at all times he lived at the Hyacinth Street property, and that "he did not provide assistance to the deceased." She said, for example, in relation to Ms Bowman, that when Ms Gardiner asked for help looking after their parents, Ms Bowman replied: "I'm sick of hearing the suffering tone of your voice. I'm too busy to talk right now": par 75.

Mr Gardiner and Ms Bowman both gave evidence that challenged the truth of Ms Gardiner's claim that they both provided very little assistance to their parents. I find that Ms Gardiner's claim was in fact too extreme and that both of her siblings did provide care and assistance to their parents, albeit at a lower level of frequency and intensity than did Ms Gardiner.

The most telling evidence on this subject is found in a letter dated 26 August 2010 that Mr Kinchington wrote to the deceased, following a conference between Mr Kinchington and the deceased that took place on that day. At that time Mr Kinchington was the deceased's solicitor, and was acting on the grant of probate of the deceased's late husband's will. He is now Mr Gardiner's solicitor. The letter contained advice on a number of subjects, and plainly related the substance of some instructions that the deceased gave to her solicitor. The letter included the following statements: "You indicated that you wish to make further provision for your daughter Jeanette (sic) as she is carrying the greater burden of the care in the home as the other two siblings cannot provide that assistance", and "Your other daughter Jeanette is attending your home almost on a daily basis to care for you both." (The letter was written when the deceased's late husband was still alive).

The deceased's brother, Mr Colin Leek, swore an affidavit in which he said that he was well aware, prior to a meeting that he had with the deceased on about 26 March 2011, that Ms Gardiner had been looking after both of her parents in their day-to-day care.

It is not necessary to analyse the evidence concerning the different levels of care and support provided by each of the three children in any detail, as in her final submissions Ms Gardiner did not make the issue of differential parental care the cornerstone of her case. She submitted that: "it is not possible to resolve the factual contest between the accounts given on [the issue of assistance] in these proceedings. It may be unnecessary to do so, as [Ms Gardiner] clearly held a firm perception to that effect...and clearly had a basis for doing so, being the high level of assistance she was providing her parents": outline of argument par 19.

It is clear from the evidence that Ms Gardiner had an expectation that the deceased would change her will and make a special bequest to Ms Gardiner to recognise the level of care that Ms Gardiner had provided to her parents and her special needs, and financial position that was significantly inferior to that of her siblings. As mentioned above, Dr Morse recorded in his 6 December 2012 report that Ms Gardiner was devastated when she discovered that the will distributed the property of the deceased's estate equally between the three beneficiaries.

Deceased's consideration of Ms Gardiner's entitlement

The letter that Mr Kinchington wrote that is referred to above recorded that the deceased had apparently informed her solicitor that she wished to make further provision for Ms Gardiner. The solicitor also observed that Ms Gardiner could not continue to provide care in the long term without some financial assistance, and that Ms Gardiner: "needs to earn a wage or obtain financial support to continue in her care role." Mr Kinchington advised:

"You have some monies in interest-bearing deposits which you may wish to pay [Ms Gardiner] for the care she provides you. Alternately, you could sell the home and place a percentage of that home in her name as a tenant in common. That would provide her with accommodation into the future and allow her to own whatever percentage of the home you think is appropriate e.g. one third or half...

You would not have to change your Will. In that way, for example, [Ms Gardiner] could retain half the new home and one third of the estate giving her about 66% of the property. The remaining one third could be divided and given to the other two children. They both have substantial assets including a home in relation to the older sister and Ray has substantial investments and superannuation as well..."

Mr Kinchington attached a form to his letter designed to assist the deceased and her husband to provide instructions as to the contents of new wills, and asked them to fill out the form and return it.

An undated Client's Instruction Sheet, which is completed in handwriting, contained the following instructions:

"I would like to make [Ms Gardiner] half owner of the house via title deed + to leave the rest divided into three equal shares, as per our discussion of various options."

The document appears to have been signed by the deceased. Ms Gardiner gave evidence that the document was in her mother's handwriting (T 26.22), and that Ms Gardiner did not see her mother fill out the page that contained the instruction (T 27.19).

Mr Kinchington swore an affidavit in which he said that he believed that he received the Client's Instruction Sheet on 13 December 2010. He said that the deceased advised him on a number of occasions that she was still thinking about what to do, when he asked her about whether she wanted to execute a new will.

In her 24 August 2012 affidavit in reply, Ms Gardiner stated in par 44 "that our mother made expression wishes to my siblings and myself that she intended to change her Will to address my financial loss and needs." She said in par 69 that she was present at the conference between the deceased and Mr Kinchington that led him to write the 26 August 2010 letter of advice that is referred to above. Among other things, Ms Gardiner said that one of the issues discussed was "the proposed changes to her Will in which she intended to make provision for me." She said Mr Kinchington "indicated that he thought it was fair that I receive two thirds of the estate but it was complicated as our father was still alive." Ms Gardiner claimed that after her father died the deceased made a number of attempts to contact Mr Kinchington to get his advice, but these attempts were unsuccessful. After the deceased sent the Client's Instruction Sheet to the solicitor, an appointment was made for a conference at his office, but when the deceased and Ms Gardiner arrived the office was locked. Ms Gardiner said that Mr Kinchington apologised and made an appointment to attend upon the deceased at her home.

Mr Kinchington said that on about 25 May 2011, when he attended the deceased's home to deal with probate of her late husband's will, he asked the deceased whether she had made a decision about changing her will, and the deceased replied: "I have decided to leave my will the way it is."

Ms Gardiner said of this meeting in par 69 of her affidavit in reply:

"Our mother specifically told him that she wanted to discuss the new Will. When Mr Kinchington arrived he was only concerned to have the documentation signed for our father's probate and said he did not have time to deal with the Will as he was going to his mother's for dinner. It should be noted that Mr Kinchington's mother and our mother were best friends.

Mr Kinchington left our house saying words to the following effect:

'You two should get together and decide what is to happen with the Will and then make an appointment to come in and see me.'"

It was not put to Mr Kinchington in cross-examination that the deceased did not give him the instruction that she had decided not to change her will. The view that Mr Kinchington's evidence should not be challenged may have been taken because Ms Gardiner was not in earshot at the time that the deceased is alleged to have given that instruction. Nor was Ms Gardiner cross-examined about her evidence, that the solicitor said during the meeting, that he did not have time to deal with the new will, and at the end of the meeting he suggested that Ms Gardiner and the deceased should decide what was to happen and make a further conference with Mr Kinchington. That evidence, if true, clashes with the proposition that Mr Kinchington was given an instruction by the deceased during the meeting that she had decided not to change her will.

Ms Gardiner also gave evidence that on the day of the deceased's death she spoke to Mr Kinchington to advise him of the fact, and he said: "I'm sorry, I thought we had more time for your mother's Will. You should try and have a meeting with your brother and sister to resolve it as soon as possible." When Ms Gardiner asked for advice as to the basis on which she should negotiate with her siblings, the solicitor replied: "On two thirds." It is highly unlikely that Mr Kinchington would have made these statements if he recalled that some three weeks earlier he had received clear instructions from the deceased that she did not wish to amend her existing will.

In Mr Leek's affidavit he said that he had a discussion with his sister on about 26 March 2011 in which she told him that she needed to change her will for the benefit of Ms Gardiner, and that she had not been coerced into making that decision. Mr Leek did not discuss the detail of his sister's intentions with her, as he did not regard that as being any of his business. Mr Leek annexed to his affidavit a hand written and a typewritten note of his discussions with the deceased on 26 March 2011. Those notes appear to confirm that the deceased intended that, after probate of her late husband's will was issued, she would sell the Hyacinth Street property and buy a smaller property in which she and Ms Gardiner could live

The notes also confirm the evidence given by Ms Gardiner in her affidavit in reply that the deceased asked Mr Gardiner to move out so that Ms Gardiner could move in to the Hyacinth Street property in the meantime in order to care for the deceased. Mr Gardiner refused to do so. Ms Gardiner would not move in while Mr Gardiner was still living there. This led to an impasse. The notes also confirm Ms Gardiner's evidence that the deceased expressed the view that Mr Gardiner had enough assets to buy a house or home unit for himself.

Finally, Mr Leek said that the deceased had told him that she had made several attempts to see her solicitor to change her will, but he was never available.

I will return below to a consideration of the deceased's deliberations as to whether a special provision should be made in her will in favour of Ms Gardiner.

Compensation payments received by Ms Gardiner

Ms Gardiner's evidence was that, apart from her share in the deceased's estate, her current assets consist of the balance of the monies that she received as compensation for the events that led to her present predicament, of $42,616, her car with an estimated value of $8500, cash in a bank account of approximately $1000, and superannuation of approximately $8000.

The evidence that Ms Gardiner provided concerning the amount of the compensation that she received, and the expenditures that led to her retaining the $42,616 was not well documented. The evidence did not provide a full or clear accounting. In some respects the evidence consisted only of assertions made by Ms Gardiner. Following a comment that I made during the course of the proceedings as to the desirability of financial evidence being corroborated, Ms Gardiner was given leave to file a supplementary affidavit that provided additional, albeit incomplete, documentary evidence as to the compensation that she had received and how a substantial part of that money had been expended.

It seems that on 26 May 2008 Ms Gardiner was awarded $51,000 workers compensation. On 12 May 2010 Ms Gardiner received from her solicitor $194,927.50, being the net proceeds of a $250,000 compromise of a common law claim that she made based upon events occurring during her employment, after the deduction of legal costs. It appears that a further cheque for $33,577.67 in respect of weekly benefits for a two-year period was also forwarded to Ms Gardiner in May 2010. The evidence is not entirely clear concerning this last-mentioned sum. Ms Gardiner was also apparently paid $10,000 to withdraw a claim for discrimination that she had made against her former employer. Counsel for Mr Gardiner made a conscientious effort in cross-examination to try to identify the amounts and times of receipt of the compensation payments, and also how Ms Gardiner expended her money. That exercise was not entirely successful because of the incomplete state of the documentation that was provided. Mr Gardiner was concerned to be able to establish whether or not Ms Gardiner had any current assets in addition to those that were disclosed in her affidavit evidence. The total net compensation received by Ms Gardiner was $289,505.17

Ultimately, the evidence appeared to establish that Ms Gardiner has spent about $90,800 on legal fees, $18,500 on her car, $41,500 on rent, and that she has $42,616 remaining. The total is $193,400. The balance of $96,105.17 has not specifically been accounted for. Ms Gardiner initially gave evidence that she had spent about half of the compensation that she had received on living expenses, but qualified that evidence in cross-examination by describing it as being "misworded"(T 30.48), as she had to concede that her biggest expenditure had been the amount that she paid to her solicitor in respect of the legal costs of the present proceedings.

I am satisfied on the evidence that Ms Gardiner only has the current assets that she has disclosed. The evidence does not establish with any clarity how all of her compensation receipts were expended, but I am satisfied that, except for the expenditures that have been identified, the money was spent on general living expenses.

Ms Gardiner's current expenses

In par 10 of her affidavit sworn on 19 July 2013 Ms Gardiner set out a table of her "current annual/monthly expenses". There is an error in the allowance for electricity, which estimates an annual expense of $2000, which is included as a monthly expense of $766.70. The latter figure should be $166.67. The total annual expenses are given at $49,430.90. The monthly amount, after making the correction referred to above, is $4119.24. That is equivalent to a fortnightly expenditure of $1901.18, say $1900.

In par 29 of her final written submissions Ms Gardiner based her submissions concerning her current expenses on the list of expenses in Annexure E to her 29 May 2012 affidavit, which were $38,949 per annum in total. I have acted upon the basis of the later list of expenses in her 19 July 2013 affidavit.

It is not necessary to set out or analyse the individual components of Ms Gardiner's current expenses, as on the one hand Ms Gardiner did not provide any evidence to justify the amounts, and on the other, the amounts were not challenged by Mr Gardiner.

Ms Gardiner's pension entitlement

In relation to her future needs, Ms Gardiner provided evidence in her 19 July 2013 affidavit that, because of the compensation that she had earlier received, she was not entitled to apply for any pension until February 2014. She subsequently agreed in cross-examination that she could apply for a pension on 1 January 2014. She said that she would initially be placed on a Newstart Allowance with a rent allowance that would be in the amount of $306.80 per week. She said that she would then be able to apply for a disability support pension that would take a minimum of six weeks to process. Initially Ms Gardiner did not give any evidence about the likely amount of the disability support pension.

Following an observation that I made during the course of the hearing as to the necessity for detailed evidence to be provided concerning the amount of Ms Gardiner's ongoing pension entitlement; Ms Gardiner provided some evidence on that subject in her supplementary affidavit sworn 14 August 2013. She said that the fortnightly payment made under a disability support pension would be $733.70. The Centrelink document annexed to Ms Gardiner's affidavit shows that a disability support pension will only be payable until Ms Gardiner is eligible for the age pension. There was no evidence before the Court as to what the amount of any age pension payable to Ms Gardiner would be. Ms Gardiner gave evidence that, if she were to own her own home, the value of the home would not be included in any asset test that might lead to a reduction in the amount of her disability support pension. She said that she could earn income up to $156 per fortnight, or $4056 per year, without any reduction in her pension entitlement. Thereafter the pension would be reduced by $.50 per dollar earned above $156 per fortnight. The pension entitlement would fall to zero if Ms Gardiner earnt $1772.80 per fortnight.

As noted above, Ms Gardiner's current expenses are $1900 per fortnight. The fortnightly disability support pension of $733.70 will plainly be inadequate to support that level of expense. Even if Ms Gardiner had an investment that yielded $156 per fortnight, that would only give $889.70 per fortnight, before additional income would start to reduce her pension. Ms Gardiner's current fortnightly expenses are $1341.18, say $1340, after deduction of her rent payments. It is clear that, even if Ms Gardiner had her own home, and so was not required to pay rent, a disability support pension would be inadequate to support her current level of expenses.

Ms Gardiner's evidence did not address this problem. She provided evidence of her current expenses without any explanation, and has not explained how she could maintain that level of expenses even if she was given in these proceedings either of the two alternative forms of relief that she now seeks.

Ms Gardiner's accommodation and other needs

Ms Gardiner also gave evidence of a need for continuing physiotherapy and hydrotherapy to address her medical problems. She provided evidence that a gym membership would be $64 per month, physiotherapy treatment would be $80 per session, and the cost of the installation of a pool for hydrotherapy would be $25,000, before extras. Ms Gardiner's final submissions described her request to be provided with a pool out of the estate as being "on the outer limit of her needs" (par 30).

The evidence provided by Ms Gardiner for the cost of her acquiring ownership of her own home is found in par 16 of her 19 July 2013 affidavit. She said:

"... I have made a number of enquiries with local Real Estate Agents and on the internet as to the costs of a suitable two (2) bedroom residence in the area. From those enquiries I understand that the range is from $480,000-$650,000."

Ms Gardner annexed to her affidavit a letter dated 29 April 2013 from Laing & Simmons that advised: "Typically you will find houses range from $550,000 and up, and townhouses from $480,000-$600,000 depending on the size, location and how new they are." The estate agents were discussing "recent sales in the Hornsby area".

Ms Gardner's position was that she could not satisfactorily live in an apartment or home unit because an aspect of her psychological condition meant that she felt isolated and found it difficult to associate with other persons, so that she would not find it suitable to live in an apartment building, which would require that she associate with other owners and the owners corporation. She did not provide any substantial reason why it was necessary for her to acquire accommodation in the Hornsby or Asquith areas. Before the deterioration in her parents' health caused her to move to rental accommodation in Hornsby, Ms Gardiner had rented in Chatswood and Willoughby. She said in cross-examination, in answer to a question as to why she would like to live in Asquith: "It's preferable. I cannot move back to the Chatswood area where I did live. It's too expensive and I am now in the Asquith/Hornsby area so, yes, I would rather stay than be dislocated somewhere else again" (T 33.41). As Ms Gardiner's case is that she is isolated from the company of other persons, she did not suggest that she had a need to live in the Asquith area because of community or friendship connections.

Ms Gardiner did not provide any evidence as to alternative potential accommodation, whether by means of the cost of an apartment in the Hornsby/Asquith area or any other place, or the cost of a town house or house in any other area, or the cost of one bedroom accommodation anywhere. The first form of the relief that Ms Gardiner now seeks is that she be allowed a sum of $480,000 to purchase a home. That amount is right at the low end of the cost estimate for town houses of the type that Ms Gardiner wishes to purchase, in accordance with the opinion expressed by Laing & Simmons.

Mr Gardiner's circumstances

Mr Gardiner was born on 4 October 1953. He has always resided in the Hyacinth Street property. He has continued to do so after the death of the deceased. Mr Gardiner gave evidence that he always paid board to his parents, and subsequently to his mother after his father died. The amount of the board that he paid was satisfactory to his parents. It increased with rises in Mr Gardiner's salary. He paid the deceased $350 every fortnight, and gave evidence of other types of payment that he made from time to time (7 December 2012 affidavit par 22).

I have referred above to the evidence given by Ms Gardiner and Mr Leek that the deceased asked Mr Gardiner to move out of the Hyacinth Street property so that Ms Gardiner could move in to care for the deceased, but that Mr Gardiner ignored that request.

Mr Gardiner said that he used to do a lot of work around the house including cutting wood for the fire, mowing the grass, cleaning the chimney, cleaning leaves from the gutters, washing down dirty exterior house walls, doing other household maintenance, and destroying wasps nests. He repainted the decking several times and had been doing work to prepare to repaint the house. He would do shopping on request. As he was living in the house with his parents, he would cook breakfast for them and often talk to them during breakfast. Among other things, he would help his mother with housework and a little with cooking.

On 12 February 2004 Mr Gardiner married a Cuban woman, who still lives in Cuba. Mr Gardiner's wife has come to Australia for visits on a number of occasions, and Mr Gardiner has spent time in Cuba staying with her. Mr Gardiner has bought a house in Cuba for his wife to live in. Buying and furnishing the house cost about $60,000. Mr Gardiner supports his wife by sending her about $5000 per year. Mr Gardiner hopes that his wife will be able to move to Australia. He expects that it will cost at least $5000 to get the visa and related paperwork and airfare for his wife to move to Australia. Mr Gardiner will have to support his wife if she comes to Australia until she can find a job. She will not be able to access social security payments for two years after she arrives. Mr Gardiner's wife would like to be a teacher, but will have to go to university to upgrade her qualifications. Mr Gardiner hopes that when he retires he will be able to live with his wife for part of the time in Australia and the balance of the time in Cuba.

Mr Gardiner attended Asquith Boys High's School and completed year 12 in 1973. He then completed a fitter and machinist trade course at North Sydney Technical College part-time while working. Later he started a degree in Engineering at the Institute of Technology, Sydney, but he did not complete it.

Mr Gardiner has since 1983 worked as a train driver. He works a 19-day month so he has 4 days off one fortnight and 5 days off the next fortnight. Normally he works several days overtime, and it is a condition of his employment that he works one-day overtime a fortnight if required. Mr Gardiner's income for the year ending 30 June 2012 was $111,189. During that year he worked 32 days overtime. Mr Gardiner gave evidence that Railcorp has been taking steps to employ a number of new train drivers for the purpose of reducing the amount of overtime that will be required of the existing train drivers. For the month before he swore his affidavit he was only given one day's overtime. If his employer stops giving him overtime, that will be likely to reduce his annual income by about $25,000.

Mr Gardiner gave evidence that he is generally in good health, but has to take blood pressure pills, and has been given medical advice that he has a high risk of developing diabetes, so he has to go for regular glucose tolerance tests. At work he has a class 1 medical certificate, which is the same as an airline pilot. If he were to develop uncontrolled diabetes or high blood pressure, he would lose his medical certificate, which would prevent him from driving trains. On about 13 March 2012 Mr Gardner was diagnosed with prostate cancer. The cancer is apparently very small and not aggressive. Mr Gardner has been advised medically that at this stage he should have a biopsy twice a year.

Mr Gardiner gave evidence that he hopes to retire soon. He is finding that as he gets older the very long and odd shifts that he does at work are very difficult. The hours that he works have caused him to be worried about his health. He will have 30 years service with the railways in mid-2014 and would like to retire soon after then.

Before he retires Mr Gardiner wants to have a house in Australia paid off. He cannot afford a house in the Hornsby area, partly because of the costs he has incurred in getting married and supporting his wife. Mr Gardiner thinks that he will have to move to the Gosford or Woy Woy areas to be able to afford a house. He says that, because of his age, the bank will only give him a home loan over a 10-year period. That may cause him problems in travelling to and from work and will add one and a half to two hours a day travelling time.

In his 20 July 2013 affidavit Mr Gardiner gave updated evidence concerning his financial circumstances. Mr Gardner listed his assets as follows:

"Commonwealth Bank Streamline account $15,560

Commonwealth Bank Term Deposit $81,669

Commonwealth Bank NetBank Saver $10,231

Credit Union $5600

MLC superannuation $69,835

Colonial Superannuation $37,274

Tower Superannuation $31,884

State Superannuation Retire $502,654

Commonwealth Bank Shares $1062."

The total amount of these investments is $755,769. Mr Gardiner gave his monthly living expenses as being a total of about $3100 per month. That includes sending his wife $390 each month. It also includes payments to four superannuation funds that total $1339 per month. If Mr Gardiner's superannuation payments are excluded, his expenses are $812 per fortnight. That compares with Ms Gardiner's fortnightly expenses, excluding rent, of about $1340.

In Ms Gardiner's submissions, she sets out calculations that proceed upon the assumption that Mr Gardiner's financial position will be improved on the basis that he could work until the age of 70, and also that there is a prospect that his wife, now aged 35, will join him to live in Australia and work here (pars 33 to 44). Ms Gardiner starts from the proposition that the total value of Mr Gardiner's present investments, plus the house in Cuba, is $815,769. If Mr Gardner works for a further 10 years, even assuming no overtime and no increase in salary, he will earn $665,610. When added to his existing assets that gives $1,481,171. If his existing superannuation were not touched until age 70, it would increase to $604,715, or an additional $102,061. That would give a total of $1,583,232. By means of calculations set out in par 38, Ms Gardiner suggests that Mr Gardiner's superannuation would increase by reason of additional contributions by $377,884 (on the basis of conservative assumptions). That would give a total of $1,961,116.

The evidence shows that Mr Gardiner hopes to use his equal third share of the deceased's estate as part payment for the costs of a home. On Ms Gardiner's figures the equal share would be between $225,000 and $231,000. Ms Gardiner submitted (par 40) that if that amount is deducted from Mr Gardiner's current financial assets, and it is assumed that he pays off the loan that he will need for the balance of the purchase price out of his income, and that the remainder of his financial assets earn 5% flat per annum over a 10 year period, at the end of that time, Mr Gardiner will own his home and have assets of between $793,149 and $787,149. This calculation appears not to take into account the additional superannuation that Ms Gardiner submits Mr Gardiner could accumulate over the period, which is dealt with elsewhere in her submissions.

Ms Gardiner submitted that there are favourable contingencies that could be taken into account that may improve Mr Gardiner's financial position, based upon the realistic possibility that his wife will move to Australia and earn an independent income, or Mr Gardiner could move to Cuba to live with his wife. As it is not possible to place a value on these contingencies, Ms Gardiner accepted that "no allowance should be made for or against the projected position of [Mr Gardiner's] wealth" (par 42).

Ms Gardiner also submitted that the Court should treat Mr Gardiner as having received a benefit of about $70,200 as a result of being able to live in the Hyacinth Street property rent-free since the death of the deceased. The calculation is set out in par 43 of her final written submissions.

The conclusion that is reached by Ms Gardiner is that the gift to Mr Gardiner under the deceased's will should be used to meet her needs (par 44), and he should receive nothing at all.

Ms Bowman's circumstances

Ms Bowman was born on 21 January 1959. Ms Bowman is divorced and has two children of her marriage, who are 25 and 21 years old. She also has two step-children from her marriage who are in their 30's. Following her divorce Ms Bowman received the family home at 21 Cutler Avenue, North Ryde, by way of a property settlement reached in May 2007. She sold that property in early 2011 and purchased her present home at 72 Somerville Road, Hornsby Heights. The North Ryde property was sold on 7 April 2011 for $850,000, with the balance of the purchase price received by Ms Bowman being $782,976. The cost of the Hornsby Heights property was $550,000. Ms Bowman used the difference to pay off various debts, including loans from family members, which left her with about $85,000. Ms Bowman has a motor vehicle purchased in August 2011 for $20,990.

Ms Bowman has recently entered into a de facto relationship with Mr Gary Campbell. Mr Campbell lives with Ms Bowman in the Somerville Road property. As at the date of Ms Bowman's 20 July 2013 affidavit, Mr Campbell was working up to 5 days a week as a casual bus driver. His gross weekly earnings have varied between $798 and $1910.52. When Mr Campbell was not working, Ms Bowman was receiving a disability support pension that paid her $569.50 per fortnight. The effect of Mr Campbell working has been to reduce her pension, so that it has ranged between nil and $200 per fortnight, depending upon the amount earned by Mr Campbell.

In earlier times Ms Bowman was able to earn up to $800 per month by taking in home-stay students and looking after them. She no longer enjoys that income, as she finds it too difficult to look after the students properly because of her health problems.

The evidence establishes that Ms Bowman has serious health problems. The detail of her medical history is set out in Exhibit DB 1 to Ms Bowman's 10 July 2012 affidavit, and in the affidavit of Dr Patricia Burke sworn on 18 July 2013. The following does not relate the whole of Ms Bowman's medical history, and is focused more on her history since 2000 and her current medical condition. In 2000 Ms Bowman was diagnosed with gastro-oesophageal reflux disease ("GORD"). She began attending the pain clinic at Royal North Shore Hospital. She was also diagnosed with a labral tear of the cartilage in her left hip and severe osteoarthritis. Ms Bowman has walked with a cane since that time. Ms Bowman was diagnosed with chronic vertiginous migraine in 2001, and with left cervical outlet syndrome in 2002. In 2003 Ms Bowman had fundoplication surgery to tighten her stomach valve, and developed pneumonia. In 2004 she was diagnosed with thoracic outlet syndrome. In 2007 she had a total left hip replacement, but suffered complications because of her femur fracturing during surgery. She developed two deep vein thromboses. In 2008 Ms Bowman developed left breast cancer (stage 2B). She had lumpectomy surgery immediately, but contracted an infection. She commenced a 12-week course of radiotherapy. She still has regular 6 monthly checkups and takes an anti-cancer drug that has many side effects.

Ms Bowman described her current ailments as being chronic pain and fibro myalgia, severe osteoarthritis, gout, GORD, and a hiatus hernia. She suffers from metaplasia and other conditions of the stomach lining. That causes her to have an increased risk of stomach cancer so that she needs to undergo biannual gastroscopies. Ms Bowman has regular steroid injections, mainly in the spine to control pain, and also takes pain medications and oral steroids. Ms Bowman attends a clinic for acupuncture and remedial massage once a week. Ms Bowman has been diagnosed with degenerative spine disease. She has regular blood tests to check on her high cholesterol, breast cancer markers and high calcium levels in case of recurrence of parathyroid tumours. Ms Bowman said in her 20 July 2013 affidavit that she has been told by her doctor that she will probably require a further hip replacement for her right hip because of osteoarthritis. Ms Bowman also has osteoarthritis in both knees and her lower back. Her hip joints are becoming more of a problem because there is some separation, and she is getting 'pins and needles' in both legs.

As is noted above, Ms Gardiner's submission is that Ms Bowman's share in the state of the deceased should be reduced to $100,000 to give her a buffer against contingencies, and the balance should be applied in favour of Ms Gardiner.

Reasons for high legal costs

The present case calls for some comment on the legal costs incurred by Ms Gardiner. Ordinarily, the legal costs of the parties must be considered to be an unfortunate necessity, even though they will usually reduce the value of the estate that is available for distribution between the parties who have claims on the estate. Ms Gardiner's solicitor, Mr Michael Paul Carroll, filed an affidavit sworn 17 October 2013, in which he provided an explanation of a number of unusual aspects of the costs incurred by Ms Gardiner. He said that in his estimation the costs in these proceedings prior to the hearing were higher than usual by an amount of approximately $30,000. The main reason for that was the high level of involvement of Ms Gardiner in the preparation of her affidavit and the considerable quantum of detailed written instructions that she provided to Mr Carroll. The initial draft affidavit was approximately three times the length of the affidavit that was relied upon. The reduction of that material and discussion as to its relevance took a considerable period of time. Mr Carroll said that in his view Ms Gardiner's psychological difficulties contributed to this process. Ms Gardiner's anxiety and concern manifested itself in a high level of involvement in the matter. Mr Carroll attempted to dissuade Ms Gardiner from adopting the approach that she did, but those attempts were not successful.

Mr Carroll gave other reasons for why the costs of these proceedings have been greater than the usual case. He said that Ms Gardiner's initial concern was that the deceased's will had not been updated as requested by the deceased. She wanted certain things to be done in respect of the deceased's estate that were in accordance with the deceased's alleged intention, but not in compliance with the terms of the existing will. Dealing with these matters took considerable time, including attempts to dissuade Ms Gardiner from the course she was taking. Mr Carroll listed in par 6 of his affidavit 11 issues that complicated the process of dealing with Ms Gardiner's application as a straightforward family provision claim. These issues included, issues in relation to the father's estate, a dispute concerning the personal property of the estate, loans to Ms Bowman, the stay of Mr Gardiner's wife in the Hyacinth Street property, and allegations relating to a failure to update the deceased's will in accordance with her request. The other issues mentioned, such as Ms Gardiner's long medical history, her work history, her caring duties, her lost opportunities, prior court cases and her current medical problems, are probably subjects that would be relevant to a conventional family provision claim.

The Court therefore in this case has to take into consideration positive evidence that Ms Gardiner's legal costs have been significantly increased for two reasons. First, Ms Gardiner appears to have insisted upon having a high level of involvement in the detail of the preparation of her case, even though that was contrary to the advice of her solicitor. That conduct on her part appears to have increased her legal costs by about $30,000. Secondly, her legal costs appear to cover the exploration of issues by her solicitor that have not led anywhere, but have involved costs being incurred that do not properly concern the application for relief that Ms Gardiner has made in these proceedings. As I understand Mr Carroll's evidence, these extraneous issues lead to costs being incurred in addition to the $30,000 mentioned above, although the correctness of that conclusion is not clear. Mr Gardiner did not cross-examine Mr Carroll to investigate the extent to which Ms Gardiner incurred costs that were not directly related to, or proportional to, her family provision claim.

The Court is faced with the need to deal with the situation that not only do the costs incurred in these proceedings form an unfortunately large proportion of the value of the assets of the estate, but Ms Gardiner's costs have been acknowledged, and properly so, by her solicitor as being unusually high.

In her final written submissions Ms Gardiner submitted that her costs should be borne by the estate. Her position appears to be that the fact that her legal costs are unusually high should not be held against her as that outcome was itself a product of the moderate to severe anxiety and depression from which she suffers.

The Statutory Scheme

The present application is governed by the relevant provisions in Chapter 3 of the Act . The Act applies in relation to the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the Former Act"), which was repealed, effective from 1 March 2009.

It is necessary to consider the legal principles that govern applications for family provision orders. In this area of the law it is important for the parties to the proceedings to have an opportunity, if they so wish, to understand from a review of the reasons for judgment why the Court has reached the conclusion that it did. An important reason is that Chapter 3 of the Act does not give to the Court a general discretion to re-work the effect of the testator's will. In particular the Court is not given a power simply to divide up the testator's property in accordance with what the Court considers to be fair. The testator's entitlement to decide how his or her property should be distributed is preserved, subject to a limited power that the Court is given to intervene and change the effect of the will in specific circumstances. Those circumstances are set out in Chapter 3 of the Act.

In a series of cases Hallen J has collected together most of the authorities that assist in the interpretation of the relevant provisions of Chapter 3, and has set out fully but succinctly how the Court is to proceed. A recent such decision is Aubrey v Kain [2014] NSWSC 15. It is not in the circumstances necessary to refer fully to his Honour's earlier decisions on this subject. I respectfully adopt the exposition of this subject given by Hallen JI will not set out fully the relevant parts of the judgment, but will now acknowledge my debt to his Honour's learning. Without further specific attribution, I propose to borrow from Hallen J's reasons, in some cases by paraphrasing parts of the judgment, and by borrowing extracts from authorities to which his Honour refers, where that is particularly relevant to the issues in the present case. I note that Hallen has repeated some of these principles in his Honour's decision of Dudic v Jakovljevic [2014] NSWSC 169.

The primary provisions of the Act are s 59(1)(c) and (2). The first relevantly provides:

"(1) The Court may...make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that...

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person..."

"Family provision order" is defined in s 3 of the Act to mean"

"an order made by the Court under chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement of an eligible person."

Section 59(2) provides:

"(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made."

On the face of these provisions the Court is empowered by subs (2) to make a family provision order that the Court believes ought to be made, but that power can only be exercised if the Court is first satisfied that the will of the deceased does not itself make adequate provision for the proper maintenance, education or advancement in the life of the relevant person.

It is necessary to consider the decision of the New South Wales Court of Appeal in Andrew v Andrew [2012] NSWCA 308, (2012) 81 NSWLR 656 concerning how Chapter 3 is to operate. The Court of Appeal has recently considered some aspects of this decision in Phillips v James [2014] NSWCA 4. Furthermore, a number of decisions of the Court at first instance have considered the effect of the Court of Appeal judgment in Andrew.

Basten JA suggested in Andrew that the Act and the Former Act operate differently. Under the Former Act it was well settled by authority that the Court was required to engage in a two-stage process. First, the Court was required by s 9(2) to satisfy itself that the provision (if any) made in favour of the eligible person was, at the time the Court determined whether or not to make such an order, inadequate for the proper maintenance, education or advancement in life of the eligible person. If the Court was so satisfied, it was then empowered by s 7 to make an order for the provision that "ought" to have been made: see Singer v Berghouse (1994) 181 CLR 201 and Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191. These decisions are considered by Basten JA in Andrew at [34] and [41], and by Barrett JA in the same case at [69]-[71] and [94].

Basten JA said at [27]:

"The intention of a two-stage process is no longer apparent in the structure of either s 59 or s 60 of the Succession Act". The justification given by his Honour at [27] is that, under the Former Act, the statute identified a non-inclusive list of considerations that governed what provision ought to be made, "a step only to be taken once the prohibition had been lifted". On the other hand: "The Succession Act, by contrast, states that the listed factors [in s 60(2)] may be taken into account in determining 'whether to make a family provision order and the nature of any such order.''

Basten JA then said at [29], concerning three potential consequences that his Honour said flowed from the changes between the Act and the Former Act that he had identified:

"... First, there is a simplification of the structure of the process. There is no longer a two-stage process required. A degree of artificiality has thus been removed. The court should now ask what, taking all relevant factors into account, would have been adequate provision for the applicant. There is no first stage of determining whether the actual provision was "inadequate", followed by a discretionary exercise of determining what would be adequate and what should in fact be done."

If this is a statement of the proper approach to the application of s 59 and s 60 of the Succession Act, then it should make a difference to the way a trial judge must deal with an application, and may sometimes lead to a different result. Basten JA's proposition would require the Court to start determining what is the provision that would be adequate for the applicant. If the provision actually made is less than that which the Court finds is necessary for adequacy, then the Court would simply make a family provision order that puts into effect that which has been found to be necessary to achieve adequacy. It would naturally follow that the condition in s 59(1)(c) would be satisfied as the provision made in the will would be inadequate.

However, Basten JA stated at [42]: "The outcome of the present appeal will not, however, be affected by considering whether the primary judge applied a two-stage enquiry or simply followed the language of the Succession Act..."

Although Allsop P agreed with Basten JA's observations in relation to the first change between the Act and the Former Act that Basten JA identified, which has been considered above, the President only said in relation to the issue of whether a two-stage process applies under the Act, at [6]:

"... Whether the process engaged in by the court in s 59 can still be described as "two staged" in the sense discussed in Singer v Berghouse [citation omitted] may be an analytical question of little consequence. The task involves an evaluative assessment and a choice as to consequence therefrom, appeal from which is governed by the principles concerning discretionary judgments: Singer v Berhouse at 211 and DAO v The Queen [citation omitted] at [93]. The terms of the new Act are to be applied. The exercise of power to make the order is conditioned on the court being satisfied of certain things in s 59(1). The order that may be made is described in s 59(2). The two elements are described in s 60(1)(b) as "whether to make [an]...order and the nature of any...order". Section 60(2) provides a detailed body of consideration for the task in s 59."

Allsop P did not express any positive agreement with Basten JA's proposition that the two-stage process does not apply under the Act. His Honour's reference to the exercise of power under the new Act being "conditioned on the court being satisfied of certain things in s 59(1)", suggests that Allsop P accepted that a finding by the Court that it is satisfied that adequate provision has not been made is a condition to the exercise of the power to make a family provision order. What can that be, if not an agreement that there is a two-stage process, even if his Honour considered that the issue may give rise to an "analytical question of little consequence".

Barrett JA held at [94] that "...the structure and effect of the Succession Act provisions warrant continuing adherence to the two-stage approach indicated by the decisions of the High Court in Singer v Berghouse and Vigolo v Bostin." His Honour's reasons for this conclusion are set out at [69]-[81].

At [76] Barrett JA set out the task, in step form, required of the Court under s 9 of the Former Act, and at [81] his Honour described the same task as required by s 59 and s 60 of the Act. This exercise involved an interpretation of the relevant sections, and an identification of the steps required. Unsurprisingly, in each case, his Honour found that one step involved the Court forming "an opinion as to the adequacy... of the provision" that was made in favour of the eligible person. Another step was, subject to a finding of inadequacy of the actual provision, the making of "an evaluative judgment as to what provision, if any, ought to be made..."

In the case of both the Act and the Former Act the relevant condition to the exercise of the power to make a family provision order depends, or depended, upon whether the existing provision was inadequate. If that finding could be made, then the Court is, or was, empowered to make a family provision order that "ought" to be made.

There are, with respect, a number of reasons why the judgment of Barrett JA on this issue is persuasive. First, it conforms most closely with the wording of the statute, and does not introduce a judicial gloss on the application of the provisions. Secondly, it may be questionable whether the subtle differences in wording between the relevant provisions of the Former Act and the Act justify a departure from settled principle established by the High Court. Thirdly, it may often be more straightforward in a practical sense for trial judges to apply the conventionally accepted approach.

As Callaway JA observed in Grey v Harrison [1997] 2 VR 359, at 366-367:

"There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering for a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

The "range of appropriate provisions" to which Callaway JA refers is not necessarily a range from within which individual minds might select a single provision as being appropriate. There is scope for legitimate difference, as to what the appropriate provision is within the range. There may be many cases in which many, differently structured, provisions may be equally adequate, and may appear so to a single mind. A fund to be invested to provide rent for a home may in some circumstances be the effective equivalent of the purchase of a home, and so on.

The statutory intention appears to be that the testamentary power of the deceased who makes a will is beyond interference if the provision made in the will for the applicant is adequate. If it is not, the power of the Court to interfere is enlivened. The Court can then make the provision that "ought" to be made. That will not always involve, and indeed may rarely involve, the identification of a single set of arrangements that appear to the particular court to be "adequate" and "proper". The Court may have to choose between a number of possible provisions, each of which compete for selection as the provision that ought to be made for the benefit of the eligible person in the circumstances. There may be many more than one adequate provision, and there may be proper discretionary reasons for choosing one amongst a number of adequate provisions.

In Singer v Berghouse at 209-210 Mason CJ, Deane and McHugh JJ said:

"The first question is, was the provision (if any) made for that applicant inadequate for [his or her] proper maintenance, education and advancement in life"?... 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....

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..."

Callinan and Heydon JJ observed in Vigolo v Bostin at 230: "We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two".

The High Court in these cases, albeit in respect of the Former Act, clearly recognised that the process is two-staged, but also appreciated that in reality many considerations relevant to the determination of each stage will also apply to the other, and that the outcome of the determination of whether the requirements of the first-stage are satisfied may involve the Court in reaching conclusions that, in the particular case, determine the outcome of the second stage.

Each of the three beneficiaries has a serious, or potentially serious, medical or psychological condition. The medical condition of Ms Gardiner is serious, at least to the extent that it will prevent her from entering into employment. In my view, in relative terms, the medical circumstances of Ms Bowman are very serious. It would be extremely unsympathetic for the Court to take any view other than that she has a substantial entitlement to the bounty of the deceased in respect of protection against the vicissitudes of life, from many of which she is already suffering. Mr Gardiner accepts that his general health is good, but given his age and the diagnosis of prostate cancer, it would be wrong for the Court not to make some allowance in his favour for the possibility of failing health.

Ms Gardiner does not own her own home, and will be committed to rental accommodation unless she receives a distribution from the estate of the deceased that is sufficient to enable her to buy a home. She worked from about 1972 to 2000, some 28 years, before she commenced employment at Oxford Art Supplies and Books Pty Ltd. She was unable to make provision for the acquisition of her own home over this period. It was only in the period of employment after 2000 that the cause of her present medical and psychological predicament arose. Ms Gardiner's present anxiety about not owning her own home is understandable, but it must be doubtful that she would have been able to buy a house of her own in her remaining employable years, even if she had not experienced the maltreatment from her employer that was the cause of her present medical condition.

Ms Bowman does own her own home, but she also is not capable of employment, and cannot be expected to continue to generate income by taking in home-stay students. For the indefinite future Ms Bowman's income will be limited to the disability support pension, the amount of which is liable to be reduced in proportion to the income that Ms Bowman's partner, Mr Campbell, is able to earn.

Mr Gardiner also does not own his own home. The arrangement that he made to board with his parents during their lifetimes may have been financially advantageous to him in some way, although the evidence does not enable the Court to make any particular finding on that subject. The Court has to proceed upon the basis that the arrangement was regarded by Mr Gardiner and his parents as mutually advantageous. However, the evidence establishes on the balance of probabilities that the deceased asked Mr Gardiner to leave the Hyacinth Street property some time before her death, to enable Ms Gardiner to move in, to care for her, but Mr Gardiner ignored that request. Now that it is clear that the Hyacinth Street property must be sold, Mr Gardiner will have to find alternative accommodation, and he is as much entitled to be able to own his own home, as is Ms Gardiner.

Mr Gardiner realises that his financial position will not realistically permit him to buy a home in the Hornsby/Asquith area, even though that would be convenient to him, at least during the balance of his working life. He aspires to buy a home on the Central Coast. For that purpose he hopes to use his share of the estate to pay part of the purchase price of a home, and to borrow the balance from a bank, to be repaid over 10 years.

I reject Ms Gardiner's argument that her application should be dealt with on the basis that Mr Gardiner can, and will, continue in employment until he is 70 years old. I find that it is likely that Mr Gardiner will continue in his present employment, notwithstanding his expressed desire to retire. That is likely to follow from his need to buy a home of his own, for himself and his wife, which is likely to involve the repayment of a bank loan over some period, irrespective of the distribution he receives from the estate. However, it would be quite wrong for the Court to expect Mr Gardiner to work past the present retirement age for entitlement to a pension of 65 ½ years (as Mr Gardiner was born between 21 July 1952 and 31 December 1953), or to assess the value of his assets on the basis that it is assumed that he will work to the age of 70. There are some questions about the arithmetical logic behind Ms Gardiner's calculation that by the age of 70 Mr Gardiner will have assets worth almost $2 million. In fairness, the calculations were put in an indicative way only, although there was some suggestion that the calculation was conservative. It is not necessary for the Court to enter into the detail of the suggested calculations.

At present Mr Gardiner's assets are worth about $760,000. It may be expected that if Mr Gardiner continues in his employment until about the age of 65, the amount of his superannuation and other financial assets will increase over the period in a way that is proportional to the increases that he has enjoyed to date. However, Mr Gardiner will have to pay for a house. Except for the distribution that he may receive under the deceased's will, the need to buy a house will diminish the value of his other assets. He will need to support himself for the rest of his life using the balance of his superannuation. No evidence was put before the Court concerning the relationship between the return that Mr Gardiner might hope to receive from his superannuation, and the possibility that he might at some time receive the age pension. Mr Gardiner may also have to support his wife. The issue of whether she can or does come to live in Australia, and, if she does whether she can upgrade her teaching qualifications, and gain employment as a teacher, is a matter that at the present time must be considered to be speculative. Ms Gardiner accepted this final proposition.

In her final submissions Ms Gardiner accepted that Ms Bowman should receive $100,000, but argued that Mr Gardiner should not receive a skerrick from his mother's estate.

I do not accept Ms Gardiner's argument that the evidence justifies a conclusion that the estate ought to be distributed between Ms Gardiner, Mr Gardiner and Ms Bowman in the proportions $540,000: $0: $100,000. The proper application of s 59(1)(c) and s 59(2) of the Act will require that Mr Gardiner receives something, and that Mr Gardiner and Ms Bowman receive between them more than $100,000.

The present question is whether the Court should find that each of Mr Gardiner and Ms Bowman has a sufficiently strong entitlement to receive the whole of the $280,000 third share of the estate given to them by the will of the deceased, so that that entitlement prevents Ms Gardiner from satisfying the first stage requirements of s 59(1)(c) of the Act. Must the Court conclude that, notwithstanding the objective inadequacy of the provision made for Ms Gardiner, the provision was nonetheless adequate in all of the circumstances?

I have concluded that Ms Gardiner has satisfied the requirements of s 59(1)(c). My reasons are, first, that the evidence establishes that the assets that would have been available to Ms Gardiner had she not instituted a claim for a family provision order would not have been adequate for her proper maintenance and advancement in life. I have set out the reasons for reaching this conclusion above when considering the outcome of her investing all of her capital, or using part of it to purchase a home. The provision would have been inadequate, even though it appears that, in any event, Ms Gardiner will have to moderate the level of her recurrent expenditure on living expenses.

Secondly, even though the evidence is obscure as to the nature of the expectation that the deceased caused Ms Gardiner to have, I am satisfied that Ms Gardiner was entitled to have the expectation fulfilled in a way that gave her some level of preferential distribution over that given to the other beneficiaries.

Finally, while I have concluded that Ms Gardiner has not successfully established that the entitlement of the other beneficiaries should be limited to a distribution of $100,000 between them, I have not concluded that those beneficiaries' entitlement is sufficient to restrict the proper provision to Ms Gardiner to the $280,000 that she received under the will.

I must therefore move on to the second stage of the process to consider what is the provision that ought to be made for the maintenance, education or advancement in life of Ms Gardiner, having regard to the facts now known to the Court: s 59(2) of the Act. Those facts have been set out above. This ultimately involves the making of a discretionary judgment of an evaluative nature, as suggested by the authorities referred to above. It also involves an intuitive assessment. It is not susceptible of complete exposition.

In the light of the substantial discussion I have already undertaken of many of the factors listed in s 60(2) of the Act above, I do not propose to consider each of the factors separately and in detail. I have proceeded on the basis that the factors set out in pars (a) - (d) and (f) - (j) are the most relevant. It would be repetitive for me now to deal with these factors again.

As I have foreshadowed above, the legal costs that will be expended by the parties to this action will have a material effect on the orders that can now be made in relation to the distribution that ought to be made of the property of the estate of the deceased. There is no other way for the Court practically to proceed except to work out first how much of the legal costs should be paid out of the estate, and then consider how the balance ought to be distributed between those persons who have claims on the estate, in order to apply s 59(2) of the Act.

It is clear that Mr Gardiner's costs should be paid in full out of the estate. For the purposes of these reasons I have made an assumption that Mr Gardiner's costs will equal $69,000, but he will, of course, be entitled to have all of his costs paid out of the estate, even if that means that the amount that is available to be distributed to the beneficiaries becomes less than the amount that I have assumed in these reasons for judgment.

I have considered separately above the evidence concerning the amount of the legal costs that the parties will probably incur, and also the reasons why Ms Gardiner has incurred costs at the level that she has. The evidence satisfies me that Ms Gardiner has incurred excessive costs, both because she has ignored her solicitor's advice as to the level of her involvement in the preparation of her evidence that was warranted, and because her costs cover issues that are not sufficiently related to the making of her application for a family provision order. The only evidence of the amount by which the costs incurred are excessive is the estimate of $30,000 given by Mr Carroll in his affidavit. For reasons given above, I suspect that that estimate is insufficient. However, the estimate was not challenged, and there is no evidence which would provide a proper basis for me to make a finding that the amount of excessive costs exceeded $30,000.

I have concluded in the circumstances that it will be appropriate for Ms Gardiner to bear $30,000 of the costs of the proceedings out of her own share of the assets of the deceased's estate. Even if the excessive costs were in part the result of Ms Gardiner's psychological condition, I do not think that is an adequate reason to visit any part of the excess in costs on the other beneficiaries.

The result is that I will proceed upon the basis that the total of the legal costs that will be payable out of the estate of the deceased will be $170,000, rather than $200,000. Ms Gardiner has already paid the $30,000 to her solicitor, Mr Carroll.

It follows that I should proceed on the basis that the value of the estate is $670,000, rather than $640,000. One third of $670,000 is $223,300. The costs incurred have the effect of reducing each beneficiary's third share under the will by $56,700.

I have treated the value of the Hyacinth Street property as being $675,000. That property will have to be sold, and the net proceeds of sale may be more or less than that sum. It was in any event only a hypothetical allowance for the value of the property, rather than the result of the determination of the value of the property. It will be appropriate for the Court to determine the proportions of the estate that should be distributed to the three beneficiaries as a percentage of the assumed value of the estate, rather than to make orders that specific sums be given to any particular beneficiary. I am satisfied that the evidence does not justify orders that provide a specific sum to one beneficiary in a way that throws onto the other beneficiaries the risk that on sale the Hyacinth Street property will not reach the assumed price.

Ms Gardiner has satisfied me that a provision ought to be made in her favour that is greater than that which was made in the deceased's will. She has not, however, satisfied me that the residual provisions that should be made in favour of Mr Gardiner and Ms Bowman should fairly and properly be reduced to the level suggested by Ms Gardiner.

Under the will the estate is divided equally between the three beneficiaries. In the manner that I have discussed above, I have concluded that the deceased's true testamentary intentions are clouded. However, it is clear that, even when the deceased's intentions were expressed most favourably to Ms Gardiner, the provision that was contemplated to be made in her favour was some 60% or so of the value of the estate. I have not taken this fact to be determinative, but I have concluded that it should be given substantial weight. It would be an extreme and unjustifiable step for the Court to ignore the deceased's wishes entirely and make no provision for a particular beneficiary out of the estate. It is to be borne in mind, however, that the evidence suggests that the period in which Ms Gardiner provided a relatively intense level of support and care to the deceased was about 1½ years.

The essential problem at the heart of this matter is that, if the provision that ought to be made in favour of each of the beneficiaries was considered separately, and in isolation, and on an equivalent basis, the aggregate value of the three provisions would be substantially more than the net actual value of the estate. Put colloquially, the cake is too small. The problem is exacerbated by the level of the legal fees. This problem introduces an unavoidable element of arbitrariness into a process of determination that is necessarily discretionary, evaluative and intuitive.

Ultimately, the issue of what order ought to be made in favour of Ms Gardiner distils in a practical sense into the question of whether, and if so by how much, the third shares of Mr Gardiner and Ms Bowman of $223,300, that are left after the costs of Ms Gardiner's application are taken into account, should be reduced in order to increase Ms Gardiner's share. That proposition does not mean that I am departing from a consideration of all of the factors that are relevant contained in s 60 of the Act. The question is how far can the provisions made in favour of Mr Gardiner and Ms Bowman properly be reduced in order to increase the provision made in favour of Ms Gardiner so that that provision is as great as on balance can be achieved.

A problem arises at this stage of the consideration. The evidence makes it clear that Ms Gardiner's expectation that she can buy her own home for a price of $480,000, and still fund her recurrent living expenses cannot realistically be achieved. Indeed, as observed above, there does not appear to be any realistic basis upon which Ms Gardiner could fund her living expenses. There was no evidence about how Ms Gardiner could get by with the expenditure of less money on living expenses, or how she could find appropriate accommodation at a lesser cost than is her preference. The consequence is that the Court is deprived of the ability to enter into arithmetical considerations to attempt to determine the amount that ought to be distributed to Ms Gardiner that is the least amount that is adequate and proper in all of the circumstances, and which least reduces the diminution in the provision to the other beneficiaries that naturally follows an increase in the distribution to Ms Gardiner.

The approach that Ms Gardiner has taken in putting evidence before the Court in support of her application has largely been to limit that evidence to that which tends to support the making by the Court of the family provision order that Ms Gardiner desires. It is quite reasonable for applicants for family provision orders to provide evidence that is expected to persuade the Court in favour of a desired outcome. It is, however, undesirable for applicants to fail to provide the Court with reasonably specific evidence, capable of being understood in financial terms, as to a range of possible family provision orders that the Court may be prepared to make, if it is not persuaded to make the order that is desired. Applicants should recognise that the Court may assess the provision that should properly be made for other beneficiaries differently than does the applicant.

Ms Gardiner has made it difficult for the Court to make a rational judgment as to the extent to which the other beneficiaries' shares in the estate could reasonably be reduced in order to make a proper and adequate provision for Ms Gardiner, that can be justified by an objective assessment of the accommodation and living arrangements that Ms Gardiner will be able to achieve from the provision in her favour as a result of a particular family provision order.

I have come to the conclusion, however, that the approach that Ms Gardiner has taken does not deprive her of an entitlement to the benefit of a family provision order under s 59(2) of the Act. Rather, the approach makes it more difficult for the Court to determine the order that can properly be made in her favour

As mentioned, Ms Gardiner has accepted that Ms Bowman should receive at least $100,000. In my judgment that is an insufficient amount in all of the circumstances. Ms Bowman's health is more parlous than that of Ms Gardiner, for the reasons given above. While she owns her own home, she is on the same pension as Ms Gardiner will be. Ms Bowman may well face substantial vicissitudes. Her future may not be settled. In the range between $100,000 and $223,300, (remembering that it is Ms Gardiner's claim that has reduced Ms Bowman's expectation from $280,000), Ms Bowman should in my judgment receive $175,000.

Although Mr Gardiner's health appears to be better than his sisters, he does not own his own home. He may have a moderately substantial superannuation fund, but it is obvious that he has worked long and hard in arduous employment for some 30 years to achieve that result. It would not be warranted for the Court to make an order in favour of Ms Gardiner that left Mr Gardiner with less than $125,000. I have concluded that it is proper to recognise that Mr Gardiner has effectively already received a benefit from the estate in the form of about $50,000 as a result of his enjoying rent-free accommodation in the Hyacinth Street property for almost three years. In adopting this figure I have discounted the $70,200 put forward by Ms Gardiner, as I am not satisfied that the weekly rent of about $475 that is implied by that figure is justified. The allowance that I have made is somewhat arbitrary. On that basis Mr Gardiner would also receive a notional distribution of $175,000, albeit only $125,000 in cash.

If a total of $300,000 is distributed to Mr Gardiner and Ms Bowman, the amount left out of the assumed $670,000 is $370,000. That is about 55.25% of the sum of $670,000. Of her assumed legal fees of $130,000, she has paid $91,000 to her solicitor. An order that she bear $30,000 of the costs will have the effect that $61,000 will be reimbursed to her out of the estate, and the unpaid balance paid by the estate. On these assumptions, the financial position of Ms Gardiner would be her existing $60,000, $61,000 reimbursement for legal costs already paid, plus the $370,000 distribution as a result of the proposed family provision order referred to above, which is $491,000.

That amount is $60,000 more than the $431,000 Ms Gardiner would have had if she had not brought these proceedings. That is an unfortunate outcome for all concerned. It has occurred largely because of the effect of the expenditure of the assets of the estate on costs, which I regard as being unnecessarily high, even allowing for the order that Ms Gardiner pay $30,000 of the costs herself. It has also occurred because in my view Ms Gardiner underestimated the reasonable entitlement of her siblings to share in the estate.

If the value of the deceased's estate after payment of the costs of the proceedings that will be borne by the estate is assumed to be $675,000, of which $370,000 is to be distributed to Ms Gardiner, $125,000 to Mr Gardiner, and $175,000 to Ms Bowman, the percentage entitlements of the three beneficiaries will be, after rounding, 55%, 19 % and 26 % respectively.

Relief

I make the following substantive orders:

(1) Grant administration of the estate of the late Dulcie Eva Gardiner under s 91(2) of the Succession Act 2006 (NSW) to the defendant, Raymond James Gardiner, for the purpose only of permitting the application in these proceedings to be dealt with.

(2) Order that the will of the late Dulcie Eva Gardiner made on 5 November 1989 be varied so that the assets of her estate available to be distributed to the beneficiaries, including after payment of the costs referred to in order (3), be distributed in the proportions -

(a) Janette Susan Gardiner - 55 %

(b) Raymond James Gardiner - 19 %

(3) Order that the costs of the parties to the proceedings be paid out of the estate of the late Dulcie Eva Gardiner on the trustee basis, with the effect that any party who has paid legal costs from the party's own funds shall be reimbursed, save that the plaintiff shall bear personally $30,000 of the legal costs that she has incurred in these proceedings.

I also make the following additional order in relation to the return of the exhibits:

(4) Order pursuant to UCPR r 31.16A and r 33.10, and Practice Note No S C Gen 18 par 26:

(a) that the exhibits be returned forthwith to the parties who tendered the exhibits to be held by them in compliance with Practice Note No S C Gen 18 par 28;

(b) that the parties return any exhibits that were produced to the Court by any person in answer to a subpoena or notice to produce to the person who produced the document forthwith upon the expiry of any time for which the party to whom the exhibit is returned is required to retain the exhibit;

(c) that all material produced directly to the Court by any party in answer to any notice to produce that has not become an exhibit be returned forthwith to the party who produced the material; and

(d) that the Registry should forthwith return, or otherwise deal with in accordance with Practice Note No S C Gen 18 par 27, all material produced to the Registry in answer to any subpoena or notice to produce.

**********

Amendments

22 March 2019 - change to case name

Decision last updated: 22 March 2019

Medium Neutral Citation:	Gardiner v Gardiner [2014] NSWSC 435
Hearing dates:	30 & 31 July 2013 and 18 October 2013
Decision date:	14 April 2014
Jurisdiction:	Common Law
Before:	Robb J
Decision:	(1)Grant administration of the estate of the late Dulcie Eva Gardiner under s 91(2) of the Succession Act 2006 (NSW) to the defendant, Raymond James Gardiner, for the purpose only of permitting the application in these proceedings to be dealt with. (2)Order that the will of the late Dulcie Eva Gardiner made on 5 November 1989 be varied so that the assets of her estate available to be distributed to the beneficiaries, including after payment of the costs referred to in order (3), be distributed in the proportions - (a)Janette Susan Gardiner - 55 % (b)Raymond James Gardiner - 19 % (c)Dianne Joan Bowman - 26 %. (3)Order that the costs of the parties to the proceedings be paid out of the estate of the late Dulcie Eva Gardiner on the trustee basis, with the effect that any party who has paid legal costs from the party's own funds shall be reimbursed, save that the plaintiff shall bear personally $30,000 of the legal costs that she has incurred in these proceedings. (4)Order for the return of exhibits and subpoenaed material as set out in par 219.
Catchwords:	SUCCESSION - family provision and maintenance - failure by deceased to make sufficient provision for the plaintiff - whether the other beneficiaries circumstances and needs reduce the plaintiff's claim
Legislation Cited:	Succession Act 2006 (NSW) ss 57 - 61, 91 Family Provision Act 1982 (NSW) ss7, 9
Cases Cited:	Aubrey v Kain [2014] NSWSC 15 Dudic v Jakovljevic [2014] NSWSC 169 Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656 Phillips v James [2014] NSWCA 4 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 201 CLR 191 Grey v Harrison [1997] 2 VR 359 Alexander v Jansson [2010] NSWCA 176 McCosker v McCosker (1957) 97 CLR 566 Butler v Morris [2012] NSWSC 748 Gorton v Parks (1989) 17 NSWLR 1 Slack v Rogan; Palffry v Rogan [2013] NSWSC 522
Texts Cited:	JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (7th ed, 2006, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Janette Susan Gardiner (plaintiff) Raymond James Gardiner as Administrator of the Estate of the Late Dulcie Eva Gardiner (defendant)
Representation:	Counsel: J J Loofs (plaintiff) M B Evans (defendant) Solicitors: Carroll & Associates (plaintiff) Kitchington & Associates Solicitors (defendant)
File Number(s):	2012/170377