Gunawardena v Kanagaratnam Sri Kantha

[2007] NSWSC 151

CITATION:	Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151
HEARING DATE(S):	28, 29, 30 November 2006
JUDGMENT DATE :	2 March 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Order that the plaintiff receive a legacy of $77,000.
CATCHWORDS:	SUCCESSION [321]- Family provision application- Application by disabled adult son- Will grants plaintiff right to reside in deceased's house- Right subject to condition that executors approve any person residing with son- Son's carer not approved to reside with him- Son left without adequate provision- Whether court to take social service benefits into account when making an order under the Act.
LEGISLATION CITED:	Family Provision Act 1982
CASES CITED:	Bective (Countess) v Federal Commissioner of Taxation (1932) 47 CLR 417 Chan v Tsui [2005] NSWSC 82 Foster v Lisle [2003] NSWSC 1243 King v Foster (C/A, 7.12.1995, unreported) Parker v Public Trustee (Young J, 31.5.1988, unreported) Ridge v Public Trustee [2006] NSWSC 400 Singer v Berghouse (1994) 181 CLR 201 Whitmont v Lloyd (Bryson J, 31.7.1995, unreported)
PARTIES:	Rohan Hirantha Gunawardena by his tutor The Protective Commissioner of New South Wales (P) Kanagaratnam Sri Kantha and John Udris (D)
FILE NUMBER(S):	SC 6417/04
COUNSEL:	L J Ellison SC (P) M A Bradford (D)
SOLICITORS:	E H Tebbutt & Sons (P) Thomas & Bisley (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 2 March 2007

6417/04 – GUNAWARDENA v KANAGARATNAM SRI KANTHA

JUDGMENT

1 HIS HONOUR: This is an application by a son for provision under the Family Provision Act 1982 from the estate of his mother. However, this case is nowhere like what I might call the usual application by an adult son under this Act. The plaintiff is a person unable to speak, he is an epileptic and has suffered strokes and is currently living in a nursing home. The estate is a small one. The application is brought on the plaintiff's behalf by the Protective Commissioner. I will return to the plaintiff's condition later in these reasons.

2 The family are of Sri Lankan origin. The plaintiff was born on 30 August 1951 and so is now 55 years of age. He was born in Sri Lanka and although he lived in Australia for some years before his marriage, he later went to Sri Lanka to be married. He married Wasantha Gunawardena on 12 February 1982. I will refer to this lady, without meaning any disrespect, as “Wasantha”. There were two children of the marriage, Asha born in 1983 and Shopana in 1986. The couple separated in July 1993. They were divorced on 17 March 1998.

3 The deceased, a medical doctor by profession, was a widow when she died on 30 January 2004. She made her last will on 9 December 2003, probate of which was granted to the defendants on 20 May 2004. The first defendant is a nephew of the deceased, the second defendant a stranger in blood.

4 The plaintiff's summons was filed on 26 November 2004.

5 At her death the deceased owned her home at Rosemeadow, near Campbelltown, worth $350,000, $220,000 in bank accounts and $15,000 worth of household items.

6 The will left the house to the first defendant for life with the remainder to certain grandchildren. The gift of the house was, however, subject to clause 4 of the will which is as follows:

"4. THE LIFE ESTATE in the property known as 6 Marcellus Place, Rosemeadow together with the gift in residue shall be subject to the following conditions taking priority over the Life Estate during the lifetime of my Son ROHAN HIRANTHA GUNAWARDENA .
(a) My Son ROHAN HIRANTHA GUNAWARDENA may reside in the home as long as he wishes.
(b) With the approval of my Executors and Trustees, my Son may permit other persons to reside in the home with him provided that this shall not confer any right upon my Son to rent the home or any part thereof.
(c) Until my Son has in the opinion of my Executors or Trustees ceased to live in the home permanently or to comply with the conditions of his right of occupation, the life tenant shall not be entitled to possession of the home.
(d) My Son shall be deemed not to have complied with the conditions of his right of occupation in the event of any of the following:
(i) Permits anyone to reside in the home temporarily or otherwise without the permission of my Executors and Trustees or,
(ii) Within a reasonable period of time fails to remove from the home anyone whom my Executors and Trustees have notified in writing to my Son should no longer continue to reside in the home.
(e) The expression "home" shall mean the property known as 6 Marcellus Place, Rosemeadow."

7 I will deal with the detailed material behind most of the following summary shortly. However, it is necessary to set out the broad common facts in brief form.

8 The deceased's home at Rosemeadow was returned for probate purposes at $350,000. This is indicative of its current value. If the property were to be sold for that figure the estate would be $434,000 gross from which one would have to deduct $63,000 for the balance of the costs of these proceedings and say another $15,000 for agent's commissions and legal fees etc, plus probably another $15,000 for possible executors' commission which would mean that the maximum amount that could be devoted to the plaintiff would be approximately $340,000.

9 The plaintiff cannot live alone, he needs carer(s) to live with him. Wasantha is the only obvious carer and the defendants have clearly indicated that they do not permit Wasantha to live in the estate home.

10 It follows that the right of residence given to the plaintiff by the will is virtually worthless.

11 It is now necessary to look at the will in the light of the events that have happened.

12 Clause 3 of the will gave 6 Marcellus Place to the first defendant for life (subject to the rights of the plaintiff in clause 4 to which I have already referred) with remainder to the four grandchildren or such of them as would be alive at the date of death of the first defendant. By clause 8, on the death of the plaintiff, the first defendant, the four grandchildren and another person will take the capital and any undistributed income other than the real estate.

13 By clause 3, on the death of the first defendant the four grandchildren will take 6 Marcellus Place, Rosemeadow.

14 If 6 Marcellus Place does not have to be sold, then the first defendant will enjoy a life estate in that property. If it does have to be sold then the first defendant will enjoy a life estate in the interest on the invested proceeds of sale, and after his death, the capital will pass to the grandchildren who are alive at the first defendant's death.

15 The first defendant has sworn various affidavits. The affidavit sworn by him in November 2006 shows that the balance of the estate account as at that date was $84,252.16 and there is this sum available, plus the value of the home less any order for costs to satisfy the testatrix's obligations. The plaintiff's costs are estimated at about $35,000; the defendants' costs at $28,000 over and above what has already been paid.

16 There is no evidence as to the first defendant's financial circumstances. It would appear that he owns his own home at St Marys and has a full time responsible job.

17 I now return to the facts underlying the plaintiff’s application.

18 As I have said, the plaintiff was born on 30 August 1951. It was clear by 1973 that he was suffering from epilepsy. He suffered a stroke in August 2001. He had a second stroke in October 2002. The plaintiff was then living with the deceased.

19 Although the exact sequence of events is a trifle unclear, it would seem that the deceased was suffering from lung cancer, and, by April 2003, it was clear that this was terminal.

20 From about September 2003, Wasantha, with the deceased’s encouragement, provided some care for the plaintiff in the deceased’s home. Wasantha also cared for the deceased.

21 Of necessity, relations between the deceased and Wasantha which had been sour, sweetened to a degree.

22 There is no doubt that there is great affection between the plaintiff and Wasantha.

23 The evidence as to the circumstances of the divorce and subsequent relationship between the plaintiff and Wasantha was a little obscure. There was some suggestion that the divorce came about because it was thought that more money could be obtained from social services if the two lived apart. However, there was also some suggestion that the deceased was over-possessive, resented Wasantha's closeness to her son and manoeuvred the plaintiff into filing for divorce. It is not necessary to resolve these matters.

24 In her affidavit of 12 May 2005, Wasantha said that she is still very close to the plaintiff and she and her children, one of whom is also suffering from epilepsy, consider that it is best for the plaintiff to live with her and their children in the home which is part of the estate because that is a home with which the plaintiff is familiar and which is sufficiently well structured to enable him to live there with his disabilities.

25 Wasantha currently lives at 33 Romeo Crescent, Rosemeadow with her two children, who are, of course, the plaintiff’s children also. That home is relatively close to the deceased's home at 6 Marcellus Place, Rosemeadow.

26 The plaintiff moved to the Kilbride Nursing Home in 70 Glendower Street, Rosemeadow on or about 7 January 2004.

27 The plaintiff lost the use of his legs no later than January 2004. He has been living in the Kilbride Nursing Home ever since, subject to what I say below.

28 The deceased, after spending some time in hospital, was admitted to the same nursing home very shortly before her death.

29 On 21 May 2004, the Guardianship Tribunal made a guardianship order in respect of the plaintiff in favour of the Public Guardian and Wasantha and made a financial management order for the office of the Protective Commissioner.

30 Wasantha became the plaintiff's sole guardian in May 2006.

31 After the filing of the summons, there was an application for an interim order. When this application came on before an Associate Justice in September 2005, it was stood over to the hearing. However, the parties agreed before the Associate Justice that there should be what might be described as a trial period for the plaintiff to live in the estate’s house with Wasantha and his children.

32 The actual agreement, which was expressly made "without admissions on the part of the defendants" contained the following:

"1. Wasantha and the plaintiff’s children , Asha and Shopana, have authority to reside in the property (6 Marcellus Place, Rosemeadow) for a trial period of not more than 5 months from the date of this agreement and, for that purpose, the Defendants will make a set of keys available to the Plaintiff within 7 days.
2. The trial period shall take place on the basis that the Plaintiff will, to the extent to which his medical condition permits, visit the property for up to two (2) 24 hour periods each week under the primary care of Wasantha.
3. The Defendants shall within 14 days hereof pay to the Plaintiff, from the investment held by the Defendants on behalf of the estate, the sum of $40,000 (“the fund”).
4. The fund shall be utilised by the Plaintiff for the purpose of meeting the expenses identified in Schedule A hereto, together with such other expenses as are necessary and reasonable to enable the trial to take place in a way which ensures the safety and well being of the Plaintiff … .
…
9. On the expiry of the trial period, by effluxion of time or otherwise:
a. Wasantha shall vacate the property and return the keys to the Defendants; and
b. In the event that any moneys remain in the fund at the end of the trial period, the Plaintiff shall retain them on trust for the Defendants until such time as these proceedings are finalised … .”

33 The affidavit of Fiona Curdie-Evans shows that the nursing home file indicated that the first home visit took place on 11 November 2005 between 10:10 am and 4 pm.

34 There were then day visits on 18 November, 2 December, 9 December and 16 December 2005, two day visits on 31 December 2005/1 January 2006; 6/7, 13/14, 25/26 January 2006; 3/4, 10/11, 24/25 February 2006; 17/18 March 2006, 1/2, 14/15 April 2006: 18 visits in all.

35 The final hearing of the proceedings came on before me on 28, 29 and 30 November 2006. Mr L Ellison SC appeared for the plaintiff and Mr M Bradford of counsel appeared for the defendants.

36 Mr Ellison submitted that it must be the case that the deceased knew of her son's circumstances. Her will was made only seven weeks before her death and shows quite clearly that she wished some regime to continue whereby her son lived in the house. However, although the will was carefully crafted, Mr Ellison submits that the will, practically speaking, provides no proper regime that caters for the plaintiff's needs. In particular, the plaintiff could not have any carer living with him in the home unless the executors consented and it may well be that there is no obligation on the executors to consent.

37 The plaintiff's principal case is that he should be given the home absolutely. He would propose that the present regime in which his former wife and children live with him in the house continue, and that they would care for him there so long as it is possible for that to happen. He would then have an asset which would provide for other care as appropriate at that time.

38 The defendants' principal objections to this are:

(1) the plaintiff really would be best off in the Kilbride Nursing Home;

(2) if the plaintiff went to live in the Rosemeadow home he would forfeit his entitlement to funding to live in a nursing home;

(3) an absolute gift of the home to the plaintiff would in fact benefit the ex-wife and children more than it would really benefit the plaintiff.

39 There was also discussion as to how far it was appropriate to make an order where the plaintiff, if no order were made, would be well and truly maintained by public funds.

40 It is probably as good a place as any to start by looking at the evidence from the "health professionals" involved with the plaintiff's care. The report of Fiona Curdie-Evans of May 2005 made the following points:

· the plaintiff was usually awakened by a Ms Frost in the morning at the nursing home. He was able to respond to Ms Frost's presence and opened his eyes momentarily before closing them again;

· he is fully dependent on nursing staff to complete all dressing activities, two nursing staff being required to assist with the removal of his clothes;

· he is transferred from the bed into a shower commode by use of a double sling and electric hoist. During this activity the plaintiff's attention fluctuated. He was observed on one occasion to open or close his eyes on seven occasions in the one minute, the longest period his eyes remained open was seven seconds;

· two nurses are required to shower and shave the plaintiff and he frequently dozed during this exercise despite having constant tactile sensations placed upon him by the nurses;

· he has double incontinence. He wears a blue wrap around pad. He is unable to respond to nursing staff when asked if he requires to go to the toilet. However, if he does respond, then two nursing staff are required to transfer him to the toilet;

· he is fully dependent on two nursing staff for mobility; he is unable to weight bear;

· one nurse must feed him and he requires thickened liquid foods and pureed food;

· he is unable to reposition or roll independently in bed and needs to be repositioned every two hours;

· he is unable to perform any grooming activities;

· he dozes continuously throughout the day;

· he is unable to communicate except to a very, very limited degree, and then not verbally;

· he requires 24 hour care from nursing attendants.

41 Ms Curdie-Evans concluded:

"The reliability of Mr Gunawardena's communication was poor within personal care activities … (He) would be unable to make an informed decision on his residence.
Mr Gunawardena is regularly attended to by his ex-wife at the nursing home. She appears to be actively involved in the decision making in relation to the care Mr Gunawardena receives ... . The care Mr Gunawardena requires is from skilled trained health professionals. The role of a carer is a highly demanding position. There is no question of the support being provided by Mrs Gunawardena however, Mr Gunawardena requires a complex provision of care by appropriately trained staff. … A return to his former residence on a full time capacity is not an impossibility however, he would receive the best care at Kilbride Nursing Home or a similar environment."

42 The plaintiff filed a report from a Susan Sweeney. She made the following points:

· the Marcellus Place property is a brick single storey dwelling with reasonable access for a person in a wheelchair. No-one is currently living in the home [as at December 2004]. The plaintiff would reside in the back section of the home where he lived prior to going into residential care. This section of the home can be accessed by walking through from the living area or via separate external doors;

· additional modifications would be required by providing ramp access to one of the back entrances and widening the bedroom doorway and remodifying the bathroom layout to allow the plaintiff to use the shower;

· the plaintiff requires 24 hour per day attendant care;

· attendant care is required for changing clothing, bedding, toileting, showering, dressing, grooming, feeding, preparation of special diet and giving medications;

· the plaintiff can be left unsupervised for periods of time because he is immobile, but he cannot be left alone in the home due to his medical state of epilepsy and swallowing management;

· he needs to be repositioned every two hours;

· attendant care would be at least $532 per week but if Wasantha was not available this would be $2,100 per week.

43 Dr Gupta is the plaintiff's general practitioner and has been treating him for many years. Dr Gupta gave evidence by telephone hook-up. He treats the plaintiff at the Kilbride Nursing Home but would be prepared to see him at Marcellus Place if he returned home. He indicated that the plaintiff was unable to speak and couldn't use his arms to gesture, but there was a little bit of communication by the gestures or facial expressions which would indicate whether he was happy or not happy. Dr Gupta was quite clear that, like most patients, he would be happier in his own home if that could be managed. He had noticed that the plaintiff had lost about 6 kilograms in the past six months but did not know why.

44 Dr Gupta was asked this at T40 in cross-examination:

"Q. Do you agree that the best place for Mr Gunawardena is the Kilbride Nursing Home?
A. Well, the best place for any patient at any stage at any time is home if it can be managed at home.
Q. That is the big if?
A. Big if, yes. There is always big ifs everywhere but yeah, I mean, constant care, 24 hours constant monitoring will be available there but home is all the best environment for anybody.
Q. Of course, it would be if he was aware of where he was?
A. That has been an issue because it appears that he seems to be happier at home and when he has been asked about going home. One of the things we mentioned in the report that it looks like he shows signs of more satisfaction when he is going home or he was at home."

45 Mr Gary Mathur who also gave evidence by telephone link is the Director of Nursing at the Kilbride Nursing Home. He is a registered nurse. He gave evidence that the plaintiff was a high level patient in terms of care requirements and was going to remain that way for the rest of his life and there was no possibility of his physical condition improving nor was there any likelihood of cognitive condition improvement. He was aware that there was communication from the plaintiff by facial expressions and blinking eyes. Mr Mathur said if a question was asked "Did you enjoy your stay at home?" the plaintiff would blink and this would be taken as an affirmation. He said the plaintiff is settled in quite well at the nursing home and appeared to be happy. He was receiving the best possible care and was very comfortable. He was then asked whether it was his view that Mr Gunawardena should go home permanently and he said that was not his view.

46 He was then questioned about the trial since the orders made before the Associate Justice and indicated that whilst there had been about 28 home visits including a number of overnight visits, there had been no two full day absences from the nursing home. He was happy that those visits had been of benefit to the plaintiff, but was not convinced that longer visits might be as beneficial.

47 Dr Neil Griffith gave reports in favour of the plaintiff returning home. He is a consultant neurologist. He indicated he was fully supportive of the plaintiff moving home and a positive outcome of the trial period and felt that he was fit to go home on a permanent basis with the anticipated home care and aged care support.

48 Mary Morrow is a clinical psychologist who was retained by the Office of the Protective Commissioner. She was of the view in October 2004 that the plaintiff should remain in the nursing home.

49 Ms Curdie-Evans gave a further report in July 2006. She noted that there had been 16 home visits of which 10 had involved an overnight stay from 11 November 2005 to 15 April 2006. She concluded:

"There appears to have been a change in weight (over the last three months) and significant change in incontinence (over the past six months). These physical changes suggest problems with his care. There have been two skin lesions within the period of the home visits. The cause of these lesions were not documented. Dressings were required on both occasions. These skin lesions also suggest problems with the provision of care for his physical needs. There has possibly been one epileptic episode.
The level of care required for Mr Gunawardena in daily personal care activities has not changed from the initial report completed. He continues to require two nursing staff with showering, toileting, positioning, dressing and transferring. …
There is concern that there are not two people at the home to provide this care promptly and as needed for Mr Gunawardena …
In my opinion Mr Gunawardena's complex physical needs are better cared for at the nursing home and this continues to be the most appropriate environment to ensure optimum care."

50 Ms Curdie-Evans was not cross-examined. Dr Gupta and Mr Mathur were cross-examined, but were not affected by cross-examination detrimentally though all Dr Gupta was really saying was that most people are happier at home rather than in an institution. Ms Sweeney was extensively cross-examined and I must confess that I share some of the views expressed in Mr Bradford's written submissions that many of Ms Sweeney's findings are far too speculative and that there are better qualified persons who have expressed real doubts about Ms Sweeney's conclusions.

51 As I have indicated earlier, the Guardianship Tribunal had examined some of the problems presented in this case on a number of occasions.

52 On 24 May 2006, that Tribunal noted that legal issues prevented Wasantha from staying in the estate house and that meant that the issue of Mr Gunawardena's long term accommodation remained unresolved. It was impressed with Ms Sweeney's evidence which it indicated was supported by Dr Gupta and Dr Griffith and the plaintiff's sister Mrs Anoja Yatapanage. It noted that a Ms Oxenham of the Protective Commissioner's Office had accepted that Wasantha had cared for Mr Gunawardena appropriately. It accepted that Wasantha's view that the trial at home had been a success and that the plaintiff was very distressed when he had to return to the nursing home. The Tribunal said of Wasantha:

"She has always made logical and factual decisions in relation to matters concerning Mr Gunawardena. This indicates that she would be well able to manage any decisions that are required to be made concerning Mr Gunawardena.
The one dissenting voice is Mr Sri Kantha Kanagaratnam. He states that Mr Gunawardena continues to be in need of nursing home care 'due to his medical condition'. … He confirmed that it remains the position of the executors that Mrs Wasantha Gunawardena should not be permitted to reside in the Rosemeadow premises with Mr Gunawardena in keeping with the express wishes of Mr Gunawardena's late mother."

53 The Tribunal noted that following the successful home trial the plan that the plaintiff should return home to be cared for by Wasantha is a plan the merits of which were no longer in contention and, accordingly, the Tribunal appointed Wasantha as sole guardian.

54 Whilst I have read the decision of the Tribunal and whilst the evidentiary material before the Tribunal was to be treated as evidentiary material before the court, I am, of course, in no way bound by the assessment of the material placed before the Tribunal. It is rather surprising that the Tribunal took the view that the plan of the plaintiff returning to his home to be cared for by Mrs Wasantha Gunawardena was no longer in contention as being the best because I would have thought that the evidence before me did not indicate that at all. The fact that the first defendant considered that this was not the best plan remains the same, but he is far from being a lone voice. However, I must note that the Guardianship Tribunal did not have before it the evidence of Ms Curdie-Evans.

55 I am by no means convinced that on the facts the plaintiff would be physically better off going home, that is, going to the testatrix's home and being cared for by his former wife and his daughters. I also do not accept that the trial involving 10 overnight visits is any real indication as to the success of a 7 day a week 24 hour a day care that is available in the nursing home. I accept from Dr Gupta and others that, as a general rule, most people are happier being cared for in their own home, but Mr Gunawardena is in a situation of needing very high care from two people which is just not going to be available to Mrs Gunawardena even if she obtains the anticipated assistance from Commonwealth funds.

56 Turning aside from the facts and looking at the law for a moment, I have been referred to a number of cases where this court has considered whether it is appropriate where a person is well maintained out of public funds that instead the care should be provided by the estate of the person's parent or similar situations.

57 The question as to how far, if at all, courts should take into account benefits that may flow to applicants and beneficiaries by way of pensions and other public benefits given to the poor is one which has not yet been finally settled. In Parker v Public Trustee, 31 May 1988, unreported, I indicated that, generally speaking, the object of the legislation is to compel persons to make provision for their dependants and not throw the maintenance of the dependants upon the public purse, though a testator has no duty to organise his or her affairs so that the beneficiaries receive the maximum benefit from his estate so long as he or she makes adequate provision for them.

58 In Whitmont v Lloyd, Bryson J, 31 July 1995, unreported, p 14, his Honour said:

"The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for the protection of private interests and serves public policy. … In my opinion, the availability of Aged Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so that their availability is preserved in whole or in part."

This was approved by Sheller JA in the Court of Appeal in King v Foster , 7 December 1995, unreported.

59 In Ridge v Public Trustee [2006] NSWSC 400, the plaintiff was a person with mild to moderate intellectual disability who was being cared for by the Protective Commissioner. The estate was a small one. If the whole of the capital of the estate was spent to maintain the plaintiff the capital would run out in a relatively short time. The testator made a substantial gift of income to the plaintiff and Windeyer J held that that was sufficient. He dismissed the plaintiff's application brought under the aegis of the Protective Commissioner for a capital sum.

60 Mr Bradford submitted in the instant case that "The better and perhaps prevailing view seems to be that the court may take social service benefits into consideration, at least in cases where, as in this one, the estate is relatively small." He cited Foster v Lisle [2003] NSWSC 1243, especially 55-60 and Ridge v Public Trustee [2006] NSWSC 400. I think that submission is probably correct.

61 I should also refer to the decision of Macready AsJ in Chan v Tsui [2005] NSWSC 82, where, at paras 59 and following, his Honour considered the relevant authorities and came to the conclusion that there were cases where it was appropriate to take into account a pension entitlement when considering whether to make an order under the Act.

62 Whichever way the case is approached, the plaintiff will be relying on social services benefits in some respect. His life at the Kilbride Nursing Home is well subsidised by the Commonwealth and were he to live at home, a subsidy would also apply, though from a different source.

63 Peter Vassiliou, the Benefits Officer of the Office of the Protective Commissioner, has sworn that the plaintiff receives $517.90 per fortnight from Centrelink by way of a disability pension. He says that if the plaintiff were to receive the estate realty and permanently resided therein, he would be regarded by Centrelink as a homeowner and he could have a further $161,500 by way of assets (excluding his home) before his pension would be reduced. However, if the plaintiff received the estate realty and did not permanently reside therein, and income was produced from the property, then his pension would be reduced so that it would cease when he received $1422.75 per fortnight.

64 He swore that if the plaintiff spent less than 52 days a year away from the nursing home he would retain his bed there and all his other entitlements although the nursing home fees remain payable. However, if he spent more than 52 days per year away from the nursing home, then his residential status would be placed at risk. At present, the Protective Commissioner held $24,000 on behalf of the plaintiff plus $33,000 of the $40,000 fund that was paid under the agreement made before the Associate Judge. No-one vouchsafes that evidence.

65 It would seem from an earlier affidavit from an officer of the Protective Commissioner that the majority of the pension is eaten up with nursing home fees and clothing so that the plaintiff's present income pays for his outgoings and his capital remains roughly intact, but of course its purchasing power will keep decreasing with inflation.

66 The plaintiff virtually seeks the whole of the estate. The defendants resist this. They say that in their view the testatrix very seriously considered her obligations and what she did in structuring her will was wise. She structured a life estate, but overrode it with a provision for the plaintiff to reside under proper conditions and then the remainder was to go to her four grandchildren in equal shares. Surplus income would go to the first defendant, but, on the vesting date capital and undistributed income would again go to the four grandchildren.

67 The defendants say that if an order were made such as the plaintiff seeks, then not only would the grandchildren in all likelihood miss out on the benefits that their grandmother intended for them, but also the ex-wife whom the testatrix thought should not be involved would almost certainly benefit.

68 As to this last matter, it is always a matter to take into account that a person other than the plaintiff may receive a significant benefit from an order that is made under the Act. Thus, where the applicant is very old, judges tend to mould the order in such a way that as little as possible of a windfall flows to other people. However, the mere fact that someone else may benefit is no reason why a proper order should not be made under the Act for the plaintiff. However, the point must be taken into consideration and given weight.

69 It also must be remembered that with carers of protected persons, the fact that the carer may also obtain some benefit by living, for instance, rent free in the protected person's home, is not a significant matter, and indeed, there is usually no obligation on the carer to account for those benefits; see Bective (Countess) v Federal Commissioner of Taxation (1932) 47 CLR 417. However, again, the point must be taken into consideration.

70 To review the stage that I have reached, I have formed the view on the facts that the plaintiff's quality of life would be best suited by him remaining at the Kilbride Nursing Home rather than living with his ex-wife and his children in the deceased's home (or her home). I have accepted Dr Gupta's view that everybody is happier living in their own home, but it seems to me that the balance of the health professionals' views is that it is more likely than not that Wasantha would not be able to care for the plaintiff adequately 7 days a week in the deceased's home.

71 In these circumstances, what should I do?

72 The High Court in Singer v Berghouse (1994) 181 CLR 201, made it clear that one approaches the ordinary Family Provision Act application, if there be such a situation, in a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made for the applicant.

73 Mr Bradford, in his submissions, put that the issues in this case might arise at both stages of that process, but this is one of those rare cases in which it may not be appropriate to analyse strictly in terms of that process. The main issue in this case, said Mr Bradford, relates to the nature of the order which should be made rather than a simple claim for money which the estate does not have.

74 There seems little doubt that the plaintiff should have been in the testatrix's mind as the prime person that she would need to provide for. There is no doubt in my mind that the provision she made was inadequate. Accordingly, I have no problem in finding for the plaintiff with respect to the first stage of the two-stage Singer v Berghouse process. However, there is a very real problem in the second stage.

75 It seems to me that the present was a case where the court should strongly consider making an interim order. Mr Ellison strongly opposed such an approach. He strongly put that there has already been an interim application heard by an Associate Justice and three days hearing now. The plaintiff's situation is irreversible and the matter must be disposed of once and for all. Mr Bradford did not strongly suggest otherwise.

76 The advantage of making an interim order is that the X factor brought about by not knowing how long the plaintiff is likely to survive would be removed.

77 However, in view of the plaintiff's attitude, it seems to me that it would be better for all concerned if a final decision were made now. What final orders should be made?

78 The plaintiff living in the Kilbride Nursing Home would appear to be able to be properly maintained for the rest of his life out of his pension. The lump sum provided under the interim orders has been whittled away by about $7,000, but I do not know how much of that is in respect of legal costs.

79 Mr Ellison asks for the whole estate. However, if the real property is conveyed in specie, the plaintiff will not be able to live in it and so the income from letting it will affect his pension. If, what would appear these days to be moderate rents of $350 a week were charged, on my calculation the pension would be reduced from $518 a week to $290 a week. This would not seem to do anybody any good. There is no evidence of any capital needs of the plaintiff in the near, or even the remote future. The $40,000 that he received about 15 months ago, has only diminished by $7,000. At that rate what is existing would not be eaten up for at least another five years.

80 Mr Ellison says that if no order were made then property would pass to the first defendant, a nephew who had no claim on the testatrix's bounty and who gave no evidence of his means, so can be presumed not to have any great need and then to the grandchildren who have indicated that they are quite content for the plaintiff to take what he needs. Accordingly, he submits, the appropriate order is that the plaintiff have the whole estate.

81 Mr Ellison puts that it does not matter too much that there is a possibility, or even probability, of the involvement of the plaintiff's ex-wife or children taking advantage after his death because so far as the children are concerned, they are remainder people in any event and the only feasible way in which the plaintiff can be cared for at home is by his ex-wife.

82 I have discussed most of the matters raised in those submissions already. I agree with counsels' submissions that this is rather a unique case. Ordinarily, when one has a very disabled person, it does not take much for one to draw the conclusion that that person should have the whole estate. However, as in Ridge's case, providing the whole estate to the plaintiff in the instant case does very little good in view of my finding that he is better cared for in the Kilbride Nursing Home.

83 I have considered very deeply the orders that should be made under the second stage of the Singer v Berghouse process. The plaintiff has already received the use of a fund of $40,000 of which most is preserved. It seems to me that if I were to add another $37,000 to that there would be a fund of $77,000 available to meet any special needs for the plaintiff for at least 10 years if it were exhausted at the present rate. I cannot see any virtue in making any other order.

84 The findings I have made that the plaintiff would be better off in the nursing home does not, for a moment, mean that he should not continue to have home visits. I appreciate that if the deceased's home is sold there may be difficulties in this. However, I have not received any evidence as to whether it would be practicable for him to have overnight visits to Wasantha at Wasantha's home.

85 However, I do consider that it would be best for the plaintiff, and that the testatrix was justified in considering it was best for him, that he not lose his residential status in the nursing home.

86 Accordingly, in my view, the plaintiff should receive a legacy of $77,000 (that includes the existing fund of $40,000), not to carry interest if paid by 2 April 2007; thereafter interest at the legacy rate. To make it clear the plaintiff should receive a legacy of whatever monies still remain in the fund provided under the agreement of September 2005 plus $37,000.

87 I also order that the costs of both parties be paid out of the estate.

88 It may be that the precise form of the order will need consideration. I will accordingly have the matter listed on 15 March 2007 at 9.30 am or, if counsel contact my Associate well before that date, on some other day suitable to counsel for short minutes of order to be brought in.

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